           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
411
CA 10-00843
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND GREEN, JJ.


HARRIET C. BOARDMAN, PLAINTIFF-APPELLANT,

                     V                            MEMORANDUM AND ORDER

CHURCH OF THE TRANSFIGURATION,
DEFENDANT-RESPONDENT.
(APPEAL NO. 3.)


MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT.

CHARLES A. HALL, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
Michael Barry, J.), entered September 30, 2009. The judgment granted
defendant costs and disbursements.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the first and second causes of action and as modified the
judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking injunctive
relief and monetary damages based upon water damage to her property
allegedly caused by the construction and expansion of defendant’s
building and parking lot. Supreme Court properly granted that part of
defendant’s motion seeking summary judgment dismissing the third cause
of action, for trespass. Defendant met its initial burden of
establishing that it did not intend to cause water to enter onto
plaintiff’s property (see Theofilatos v Koleci, 105 AD2d 514), and
plaintiff failed to raise a triable issue of fact in opposition (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). The court
erred, however, in granting those parts of the motion seeking summary
judgment dismissing the first and second causes of action, for a
permanent injunction and damages based on private nuisance,
respectively. Defendant established its entitlement to judgment as a
matter of law dismissing those causes of action (see Langdon v Town of
Webster, 238 AD2d 888, lv denied 90 NY2d 806). Plaintiff, however,
raised a triable issue of fact whether the drainage system installed
by defendant in connection with the improvements to its property
caused the diversion of surface water onto plaintiff’s property (cf.
id.). We therefore modify the judgment accordingly.

Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
