Kane v. Shephard

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and fourth cause of action reinstated. Memorandum: Supreme Court erred in granting that part of the motion of defendants Glenn V. Pitts and Katherine Pitts for summary judgment dismissing the fourth cause of action. “It is well established that a landowner is not liable for damages to abutting property for the flow of surface water resulting from improvements to his or her land so long as ‘the improvements are made in good faith to fit the property to some rational use to which it is adapted, and * * * the water is not drained into the other property by means of pipes or ditches’ (Kossoff v Rathgeb-Walsh, Inc., 3 NY2d 583, 589-590; see, Osgood v Bucking-Reddy, 202 AD2d 920, 921)” (Langdon v Town of Webster, 238 AD2d 888, lv denied 90 NY2d 806). The Pitts failed to meet their initial burden of negating the existence of triable issues of fact whether they installed concrete fill in the wooded portion of their property in good faith in order to enhance the property and whether the effect of installing the fill was to divert the flow of surface waters in a defined path underneath plaintiffs’ cottage. (Appeal from Order [918] of Supreme Court, Chautauqua County, Gerace, J. — Dismiss Pleading.) Present — Green, J. P., Pigott, Jr., Balio and Fallon, JJ.