Sherman v. John P. Cunningham & Sons, Inc.

—In an action, inter alia, to permanently enjoin the defendant from draining certain storm and sewer water over an easement and right-of-way, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Dutchess County (Jiudice, J.), dated October 7, 1997, which granted the defendant’s motion for summary judgment and dismissed the complaint. Ordered that the order and judgment is reversed, with costs, the motion for summary judgment is denied, and the complaint is reinstated. We agree with the plaintiffs that the Supreme Court [375] improperly granted the defendant’s motion for summary judgment. Issues of fact exist which preclude granting the motion, including (1) the size of the area to be drained and the manner in which it is to be drained under the 1989 easement, and (2) to what extent the flow of water onto the easement, and thereby onto the plaintiffs’ property, has been increased. These issues are of a factual nature that cannot be determined on the basis of the pleadings, affidavits, or exhibits submitted. Accordingly, they must be more fully explored at trial before the parties’ rights are determined (see, Fordham Operating Corp. v County of Westchester, 82 Misc 2d 566, affd 51 AD2d 1014). Ritter, J. P., Thompson, Santucci and Joy, JJ., concur.