| Prachel v Town of Webster |
| 2012 NY Slip Op 04468 [96 AD3d 1365] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| Kathleen Prachel, Respondent, v Town of Webster,Appellant. |
—[*1] Knauf Shaw LLP, Rochester (Alan J. Knauf of counsel) and Richard J. Lippes & Associates,Buffalo, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered January 3, 2011. The order denied the motion of defendant for summary judgmentdismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion seeking to limit plaintiff's recoverable property damages to thoseaccruing within the 90 days prior to service of the notice of claim and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this action asserting causes of action for trespass,nuisance and negligence. She sought damages for injuries she sustained and for damage to herproperty as the result of flooding allegedly caused by defendant's artificial diversion of surfacewater through its storm and surface water drainage system. Defendant moved for summaryjudgment dismissing the complaint on the ground that its drainage system was not the cause ofthe flooding on plaintiff's property. Alternatively, defendant moved for summary judgmentdismissing the negligence cause of action and limiting the damages recoverable under thetrespass and nuisance causes of action to those accruing within 90 days prior to the service of thenotice of claim (see General Municipal Law § 50-e [1] [a]), or one year and 90days prior to the commencement of the action (see § 50-i [1]). Supreme Courtdenied the motion in its entirety.
To establish liability for damages from the flow of surface water onto her property, plaintiffis required to demonstrate that defendant diverted the surface water by artificial means "or thatthe improvements [made by defendant] were not made in a good faith effort to enhance theusefulness of the defendant's property" (Cottrell v Hermon, 170 AD2d 910, 911 [1991],lv denied 78 NY2d 853 [1991]; see Kossoff v Rathgeb-Walsh, 3 NY2d 583,589-590 [1958]; Smith v Town of LongLake, 40 AD3d 1381, 1383 [2007]). Paving alone—as opposed to pipes, sluices,drains or ditches—does not constitute an artificial means of diversion (see Cottrell,170 AD2d at 911; see also Friedland v State of New York, 35 AD2d 755, 756 [1970]).Here, it is undisputed that defendant owns a surface water drainage system that collects anddiverts water across plaintiff's property. That system includes, inter alia, culvert pipe, a drainageditch and a catch basin. Plaintiff alleges that [*2]defendant'sdrainage system has altered natural flows and created a storm water detention zone on herproperty. According to plaintiff, the detention zone created by the increased run-off from a newhousing subdivision is inadequately drained and is a significant contributor to the excess water inthe soil surrounding plaintiff's house.
Even assuming, arguendo, that defendant established its entitlement to summary judgmentdismissing the complaint, we conclude that the affidavit of plaintiff's engineer submitted inopposition to the motion was sufficient to raise a triable issue of fact whether defendant'sdrainage system altered the natural flow of surface water to create a storm water detention zoneand flooding on plaintiff's property (seePluchino v Village of Walden, 63 AD3d 897, 897 [2009]). Further, that affidavit wasalso sufficient to raise a triable issue of fact whether defendant was negligent in the maintenanceof the drainage system and whether such negligence was a proximate cause of water intrusioninto plaintiff's basement (cf. Hongach vCity of New York, 8 AD3d 622, 622 [2004]).
Contrary to defendant's contention, we conclude that plaintiff properly served the notice ofclaim within 90 days of her discovery of the alleged personal injuries (see CPLR 214-c[3]; General Municipal Law § 50-e [1] [a]). Further, inasmuch as plaintiff commenced thisaction within one year and 90 days from the date of that discovery, her personal injury claimbased upon the growth of toxic mold allegedly caused by the water intrusion into her basementwas timely interposed (see § 50-i [1]; CPLR 214-c [3]). We agree with defendant,however, that because plaintiff discovered the mold growth in her home several years prior toserving the notice of claim, any damages awarded under that part of the negligence cause ofaction based on property damage must be limited to those resulting from any negligent acts thatdefendant committed within the 90 days prior to service of the notice of claim (seeGeneral Municipal Law § 50-e [1] [a]).
Finally, inasmuch as plaintiff conceded in opposition to the motion that her damages underthe trespass and nuisance causes of action insofar as they were based on property damage werelimited to those damages sustained within 90 days prior to the date of filing of her notice ofclaim, she is estopped from taking a contrary position on appeal (see generally Mitchell v LaBarge, 257 AD2d 834, 835 [1999]). Although we agree with plaintiff that "[c]ompliancewith sections 50-e and 50-i of the General Municipal Law is not required where a plaintiff seeksequitable relief to abate or enjoin a nuisance and incidentally seeks money damages for pastconduct" (Baumler v Town of Newstead, 198 AD2d 777, 777 [1993]), plaintiff'spleadings contain no claim for equitable relief. We therefore modify the order by granting thatpart of defendant's motion seeking to limit the damages plaintiff may recover for propertydamage to those accruing within the 90 days prior to service of the notice of claim.Present—Smith, J.P., Lindley, Sconiers and Martoche, JJ.