| Moretti v Croniser Constr. Corp. |
| 2010 NY Slip Op 06783 [76 AD3d 1055] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Alfonso Moretti et al., Appellants, v Croniser ConstructionCorporation, Defendant, and Raymond Croniser, Respondent. |
—[*1] Judith L. Lubinsky, Campbell Hall, N.Y., for respondent.
In an action, inter alia, to recover for damage to property, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), datedMay 20, 2009, as granted those branches of the motion of the defendant Raymond Croniserwhich were for summary judgment dismissing the first, second, and fourth causes of actioninsofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
A landowner will not be liable for damages to an abutting property caused by the flow ofsurface water due to improvements to his or her land, provided that the improvements were madein good faith to fit the property for some rational use, and that the water was not drained onto theother property by artificial means, such as pipes and ditches (see Kossoff vRathgeb-Walsh, 3 NY2d 583, 589-590 [1958]; Moone v Walsh, 72 AD3d 764 [2010]; Hulse v Simoes, 71 AD3d 1086[2010]; Tatzel v Kaplan, 292 AD2d 440 [2002]). The plaintiff has the burden ofestablishing that the improvements on the defendant's land caused the surface water to bediverted, that damages resulted, and either that artificial means were used to effect the diversionor that the improvements were not made in a good faith effort to enhance the usefulness of thedefendant's property (see Moone vWalsh, 72 AD3d 764 [2010]; Hulse v Simoes, 71 AD3d 1086 [2010]; Gollomp v Dubbs,283 AD2d 550 [2001]).
Here, the defendant Raymond Croniser made a prima facie showing of entitlement tojudgment as a matter of law dismissing the first, second, and fourth causes of action insofar asasserted against him (see Hulse vSimoes, 71 AD3d 1086 [2010]; Tatzel v Kaplan, 292 AD2d 440 [2002];Gollomp v Dubbs, 283 AD2d 550 [2001]). In opposition, the plaintiffs failed to raise atriable issue of fact as to whether artificial means were used to divert surface water fromCroniser's property onto their properties, or as to whether the improvements to Croniser'sproperty were made in good faith (seeHulse v Simoes, 71 AD3d 1086 [2010]; Tatzel v Kaplan, 292 AD2d 440 [2002];Gollomp v Dubbs, 283 AD2d 550 [2001]). Accordingly, the Supreme Court properlygranted those branches of Croniser's motion which were for summary judgment dismissing thefirst, second, and fourth causes of action insofar as asserted against him. Mastro, J.P., Chambers,Roman and Sgroi, JJ., concur.