           SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

662
CA 13-02037
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


ALEXANDRA VILLAFRANK, PLAINTIFF-APPELLANT,

                     V                               MEMORANDUM AND ORDER

DAVID N. ROSS, INC., DAVID ROSS, INDIVIDUALLY,
AND HOWARD ROSS, INDIVIDUALLY,
DEFENDANTS-RESPONDENTS.


SPANN & SPANN, P.C., DUNKIRK, JAMES P. RENDA, BUFFALO, FOR
PLAINTIFF-APPELLANT.

FESSENDEN, LAUMER & DEANGELO, JAMESTOWN (MARY B. SCHILLER OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Chautauqua County (James
H. Dillon, J.), entered February 7, 2013. The order granted the motion
of defendants David N. Ross, Inc. and Howard Ross for summary judgment.


     It is hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the motion is denied, and the complaint
is reinstated against defendants David N. Ross, Inc. and Howard Ross.

     Memorandum: Plaintiff commenced this action seeking injunctive
relief and monetary damages based upon damage to her property allegedly
caused by defendants= diversion of additional surface water onto her
property. We agree with plaintiff that Supreme Court erred in granting
the motion of defendants David N. Ross, Inc. (the Ross corporation) and
Howard Ross (defendant) for summary judgment dismissing the complaint
against them. We therefore reverse the order, deny the motion, and
reinstate the complaint against those two parties (collectively,
defendants).

     Plaintiff and the Ross corporation own neighboring properties in
the Town of Westfield, with plaintiff=s property located to the west of
the Ross property. Because of the topography of the area, surface water
on the two properties naturally flows in a northwesterly direction. There
is a central drainage ditch between the two properties that flows from
the south to the north (hereafter, north-south ditch). The north-south
ditch begins on the Ross property, runs along the boundary between the
properties, and then extends north onto plaintiff=s property. In the
1960s, defendant=s father and plaintiff=s father-in-law agreed to install
an underground clay pipe running from east to west, starting from a catch
basin on the Ross property and ending at a creek located on plaintiff=s
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                                                               CA 13-02037

property. The catch basin is located at the southern end of the
north-south ditch, and its purpose is to act as a Aclean-out in case the
lines get plugged.@ There is also a 700- to 800-foot lateral drainage
ditch running from east to west across the Ross property (hereafter,
east-west ditch), which empties into the catch basin. Plaintiff alleges
that defendants have made various modifications to the original drainage
system over time, and that such modifications have diverted additional
water from the Ross property onto her property.

     A plaintiff Aseeking to recover [from an abutting property owner
for the flow of surface water] must establish that . . . improvements
on the defendant=s land caused the surface water to be diverted, that
damages resulted and either that artificial means were used to effect
the diversion or that the improvements were not made in a good faith effort
to enhance the usefulness of the defendant=s property@ (Cottrell v Hermon,
170 AD2d 910, 911, lv denied 78 NY2d 853; see Prachel v Town of Webster,
96 AD3d 1365, 1366; Moone v Walsh, 72 AD3d 764, 764). Here, defendants
failed to meet their burden on their motion of establishing their
entitlement to judgment as a matter of law inasmuch as their own moving
papers raise an issue of fact whether they diverted surface water onto
plaintiff=s property by artificial means (see Vanderstow v Acker, 55 AD3d
1374, 1375; cf. Congregation B=nai Jehuda v Hiyee Realty Corp., 35 AD3d
311, 312; see generally Zuckerman v City of New York, 49 NY2d 557, 562).
 Defendant admitted that, in the summer of 2010, he Aupgraded@ a clay pipe
located within the east-west ditch by removing it and installing 800 feet
of perforated plastic pipe. Although that pipe is located entirely on
the Ross property, it carries water into the north-south ditch, which
ultimately terminates on plaintiff=s property. Defendants also
acknowledged that they had installed about 1,000 feet north of the catch
basin a pipe that drains water from the Ross property and empties it
directly into the north-south ditch. We agree with plaintiff and the
court that whether defendants= actions constituted mere Aroutine
maintenance and repair of existing . . . pipes@, as defendants contend,
raises an issue of fact. Moreover, defendants further acknowledged that
there is periodic pooling of water around the catch basin. While
defendants emphasize that such pooling occurred entirely on their
property, the catch basin is located less than seven feet from the property
line and, further, it is undisputed that the accumulated water ends up
in the north-south ditch, where it ultimately flows onto plaintiff=s
property.

     Even assuming, arguendo, that defendants met their initial burden
on the motion, we conclude that plaintiff raised an issue of fact in
opposition (see Prachel, 96 AD3d at 1366; Moone, 72 AD3d at 765; cf. Tatzel
v Kaplan, 292 AD2d 440, 441). Plaintiff submitted, inter alia, affidavits
of her husband in which he averred that defendants replaced the clay pipe
in the east-west ditch in 2010 and Are-routed@ that pipe to the north-south
ditch, thus diverting additional water onto plaintiff=s property. In his
2012 affidavit, plaintiff=s husband further averred that defendants Aare
continuing this diversion process . . . as I have observed more ditching
that is being placed with backhoes.@ A survey prepared in 2011
corroborates plaintiff=s assertion that water flowing east to west across
the Ross property ends up in the north-south ditch as opposed to flowing
west through the clay pipe into the creek as originally agreed by the
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                                                               CA 13-02037

parties and/or their predecessors. Further, plaintiff submitted an
affidavit from an engineering expert who averred that, at some point
between 2009 and 2012, defendants dug a new ditch connecting the east-west
ditch to the north-south ditch and that, as a result, storm water that
previously had flowed into the catch basin and through the underground
clay pipe to the creek Ais now redirected to the north and ultimately
reaches [plaintiff=s] property.@ In addition to the new plastic pipe in
the east-west ditch that defendant admittedly installed, the expert
observed Anumerous perforated plastic pipe[s] under drains . . . on the
Ross property to collect subsurface water,@ which Aappear[ed] to be
relatively new.@ The expert opined, within a reasonable degree of
engineering certainty, that the Aflow rate@ and volume of water entering
plaintiff=s property from the north-south ditch is Amore than twice . .
. what previously existed,@ and that Athe majority of this increased flow
is directly due to the modifications [that defendants] made after 2009@
(see Prachel, 96 AD3d at 1366).

     We further agree with plaintiff that there is an issue of fact whether
the drainage system modifications on defendants= property were a proximate
cause of the alleged damage to her property (see id.; Vanderstow, 55 AD3d
at 1375-1376). Defendants emphasize plaintiff=s claimed inability to
develop a subdivision on the property, asserting that such inability is
the result of a variety of factors unrelated to any conduct on their part.
 Plaintiff, however, may recover damages for any diminution in the value
of her property or the cost of remediation irrespective of the proposed
subdivision (see generally Jenkins v Etlinger, 55 NY2d 35, 39).

     Finally, we agree with plaintiff that there is an issue of fact with
respect to the individual liability of defendant. It is well established
that A[a] corporate officer may be held personally liable for a tort of
the corporation if he or she committed or participated in its commission,
whether or not his or her acts are also by or for the corporation@ (Apollo
H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855, 857; see Gjuraj v
Uplift El. Corp., 110 AD3d 540, 541; see also Kopec v Hempstead Gardens,
264 AD2d 714, 716). Here, plaintiff alleged, and defendant admitted,
that he personally cleaned out the east-west ditch in 2005 and replaced
the east-west pipe in 2010. Defendant further admitted that, north of
the catch basin, he replaced another pipe that flows into the north-south
ditch. We thus conclude that there is an issue of fact whether defendant
is individually liable for his allegedly tortious conduct (see Huggins
v Parkset Plumbing Supply, Inc., 7 AD3d 672, 673; cf. Kopec, 264 AD2d
at 716; Clark v Pine Hill Homes, 112 AD2d 755, 755).




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
