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

739
CA 13-02181
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


RICHARD A. WICKS, JR., MARY ANN WICKS,
KAREN M. CAPUCILLI, KRISTINA M. CAPUCILLI
AND JONATHAN J. WICKS, AS CO-TRUSTEES OF
THE RICHARD A. WICKS, JR. AND MARYANN WICKS
TRUST, PLAINTIFFS-APPELLANTS,

                     V                               MEMORANDUM AND ORDER

MICHAEL J. KELLY AND KATHLEEN Q. KELLY,
DEFENDANTS-RESPONDENTS.


CARROLL & CARROLL LAWYERS, P.C., SYRACUSE (JOHN BENJAMIN CARROLL OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (Deborah
H. Karalunas, J.), entered July 25, 2013. The order denied the motion
of plaintiffs for summary judgment.

     It is hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting plaintiffs= motion in part and dismissing
the counterclaims and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action to resolve an alleged
dispute over the ownership of a portion of their driveway, as well as
the driveway shoulder to the south of their driveway, which is where
plaintiffs= and defendants= properties abut each other. In their
complaint, plaintiffs allege they have sole title to their driveway and
driveway shoulder by deed and/or adverse possession since 1964 and that,
beginning in or about October 2011, defendants entered their driveway
and driveway shoulder and interfered with their use and enjoyment of the
property by placing permanent structures thereon. In their answer,
defendants asserted three counterclaims. In the first counterclaim,
defendants allege that extensive changes made by plaintiffs to their
property in 2010, including the removal of both a shed from their property
and a stone barrier between the properties, changed the Acontour of the
land@ and led to water runoff to defendants= property, resulting in water
damage to their side yard and basement. They allege in the second
counterclaim that plaintiffs have repeatedly trespassed on their property
and are wrongfully denying defendants access to their own property. In
the third counterclaim, defendants allege that plaintiffs encroached on
their property when plaintiffs= driveway construction extended 8 to 10
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                                                                CA 13-02181

inches beyond the southern boundary of plaintiffs= property, and defendants
seek an order directing plaintiffs to remove the encroachment and to
compensate defendants for the resulting damages.

     Plaintiffs moved for summary judgment on the complaint and for summary
judgment dismissing defendants= counterclaims. In support of the motion,
plaintiffs submitted the affidavit of a former owner of defendants=
property who stated that, from 1966 through 1979, Athe [plaintiffs] solely,
openly used, occupied, improved, mowed, made plantings, weeded, and
maintained the premises at suit as sole owners.@ Plaintiffs also
submitted the affidavit of an engineer who stated that, in his opinion,
plaintiffs= property has not contributed to any drainage issues on
defendants= property. In opposition to the motion, defendants submitted
an affidavit in which they asserted that they Ado not dispute that the
boundary of our two properties is along the southern edge of [plaintiffs=]
driveway@ and that defendants= surveyor Aputs our boundary line . . . at
the same place as@ plaintiffs= surveyor. They further asserted, however,
that the drainage materials they placed next to plaintiffs= driveway are
Aclearly within the settled boundary according to the two surveyors and
by Plaintiffs= own admissions,@ and that A[d]rainage became an issue on
[defendants=] property after the Plaintiffs changed the structures and
contour of their property.@ Defendants also note that, A[a]lthough . .
. [plaintiffs=] driveway encroaches slightly onto our land in some places,
we do not claim it.@ Supreme Court denied plaintiffs= motion in its
entirety, determining that there are issues of fact Aregarding the property
line and the parties= use of all property.@

     Contrary to plaintiffs= contention, the court properly denied that
part of their motion for summary judgment on the complaint. Because
plaintiffs are claiming that they obtained title to the disputed property
in 1964, plaintiffs= adverse possession contention falls under the prior
version of RPAPL 522 (see Franza v Olin, 73 AD3d 44, 46; see also West
v Hogan, 88 AD3d 1247, 1248, affd 19 NY3d 1073; Hammond v Baker, 81 AD3d
1288, 1290-1291). We conclude that they failed to meet their initial
burden of proof of establishing title by deed or adverse possession,
however, because they failed to submit any evidence of the parameters
or measurements of the property in dispute. Thus, we conclude that the
court=s finding of a factual question Aregarding the property line,@ i.e.,
the actual dimensions of the disputed property, is supported by the record
(see generally Hammond, 81 AD3d at 1290).

     We agree with plaintiffs, however, that the court erred in denying
that part of their motion for summary judgment dismissing defendants=
counterclaims. We therefore modify the order accordingly. With respect
to defendants= first and second counterclaims, it is well established that
a party Aseeking to recover [from an abutting property owner for the flow
of surface water] must establish that . . . improvements on the [abutting
property owner=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 [abutting owner=s] property@ (Mount Zion Ministries
Church, Inc. v Hines Color, Inc., 19 AD3d 1060, 1060, lv denied 5 NY3d
711; see Langdon v Town of Webster, 238 AD2d 888, lv denied 90 NY2d 806).
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                                                               CA 13-02181

 Here, plaintiffs met their burden with respect to the first and second
counterclaims by establishing that the Anatural contour of their property,
rather than improvements [or alterations] made by [plaintiffs] thereto,
caused the diversion of surface water@ onto defendants= property (Mount
Zion Ministries Church, Inc., 19 AD3d at 1060), and defendants failed
to raise an issue of fact in that respect (see generally Zuckerman v City
of New York, 49 NY2d 557, 562). The record further establishes that the
improvements on plaintiffs= property, including the driveway extension
and the removal of a shed, were all made in good faith. Defendants= further
contention that its first counterclaim Amay reasonably be interpreted
as one setting forth a cause of action for private nuisance@ is raised
for the first time on appeal and therefore is not properly before us (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985).

     Finally, with respect to defendants= third counterclaim, we conclude
that defendants effectively abandoned that counterclaim by asserting in
opposition to plaintiffs= motion that, A[a]lthough . . . [plaintiffs=]
driveway encroaches slightly onto our land in some places, we do not claim
it@ (see generally id. at 984).




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