                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521771
________________________________

DAVID SILVERMAN et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

GERALD A. DOELL,
                    Appellant.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for
appellant.

     Franklin A. Josef, Fayetteville, for respondents.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Faughnan, J.),
entered December 18, 2014 in Madison County, which denied
defendant's motion for summary judgment dismissing the amended
complaint.

      The parties own neighboring parcels, separated by a road,
on land sloping down toward Cazenovia Lake in Madison County.
Defendant's property is uphill from plaintiffs' property, and
water drains from the former to the latter via a culvert running
underneath the road. Drainage has been an ongoing concern in the
area and, in the 1990s, plaintiff David Silverman installed a
pipe at the outlet of the culvert to divert the water into a
French drain. Defendant noted that water backed up on his
property near the entrance to the culvert – a situation that he
suspected was largely due to the diversion of water to the French
                              -2-                521771

drain on plaintiffs' property – and, in 2010, he excavated near
the culvert entrance to create a "detention area" capable of
holding the backed-up water until it could flow through the
culvert.

      Believing that defendant had diverted additional water onto
their property that threatened to damage their French drain,
plaintiffs commenced the present action for damages. Following
joinder of issue, defendant moved for summary judgment dismissing
the amended complaint. Supreme Court denied the motion, and
defendant now appeals.

      We reverse. "Landowners making improvements to their land
are not liable for damage caused by any resulting flow of surface
water onto abutting property as long as the improvements are made
in a good faith effort to enhance the usefulness of the property
and no artificial means, such as pipes and drains, are used to
divert the water thereon" (Baker v City of Plattsburgh, 46 AD3d
1075, 1076 [2007] [citations omitted]; accord Burgher v AF III
Props., LLC, 80 AD3d 1055, 1057 [2011]). "Thus, a plaintiff
seeking to recover must establish that the 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 [1991], lv
denied 78 NY2d 853 [1991]; see Cotton v Beames, 74 AD3d 1620,
1622 [2010]; Smith v Town of Long Lake, 40 AD3d 1381, 1383
[2007]).

      Defendant averred that the complained-of work involved the
removal of 17 to 25 cubic yards of soil around the entrance to
the culvert and that it did not artificially channel water onto
plaintiffs' property. He also stated that he performed the work
in a good faith effort to create a detention area that would
remediate drainage issues on his property in the event that the
flow through the culvert was slow or blocked. Defendant further
submitted the affidavit of a neighbor of the parties, a civil
engineer with experience in stormwater management, who opined
that the work did improve drainage and had no effect on the
amount of water flowing onto plaintiffs' property. Defendant
                              -3-                521771

accordingly met his prima facie burden of demonstrating his
entitlement to summary judgment, shifting the burden to
plaintiffs to demonstrate that the changes were undertaken in bad
faith or diverted additional water onto their property by
artificial means (see Baker v City of Plattsburgh, 46 AD3d at
1076; Smith v Town of Long Lake, 40 AD3d at 1383; see also
Archambault v Knost, 132 AD2d 909, 910 [1987]).

      Plaintiffs argued that additional surface water was
channeled onto their property by artificial means, essentially
claiming that defendant elevated low-lying areas of his property
with the soil excavated from the detention area and that these
changes in grade diverted additional water toward the detention
area and culvert. Plaintiffs submitted the affidavit of a
licensed professional engineer who opined that the changes
"substantially increased the volume of water being distributed
. . . onto [plaintiffs'] lands." The engineer gave no hint as to
whether he had any "specialized training, personal knowledge or
practical experience related to the subject at issue," however,
and his opinion should not have been relied upon (Flanger v 2461
Elm Realty Corp., 123 AD3d 1196, 1198 [2014]). In any event,
nothing "prevent[s] the owner of land from filling up the wet and
marshy places on his [or her] own soil for its amelioration and
his [or her] own advantage, [even if] his [or her] neighbor's
land is so situated, as to be incommoded by it" (Kossoff v
Rathgeb-Walsh, 3 NY2d 583, 589 [1958] [internal quotation marks
and citations omitted]; see Archambault v Knost, 132 AD2d at
910). Thus, in the absence of any allegation that defendant
embarked upon a scheme to collect and channel additional surface
water onto plaintiffs' property by artificial means (compare
Kossoff v Rathgeb-Walsh, 3 NY2d at 589-590 and Archambault v
Knost, 132 AD2d at 910, with Krossber v Cherniss, 125 AD3d 1274,
1275 [2015] and Long v Sage Estate Homeowners Assn., Inc., 16
AD3d 963, 965 [2005], lv dismissed and denied 5 NY3d 756 [2005]),
defendant is entitled to summary judgment dismissing the
complaint in its entirety (see Baker v City of Plattsburgh, 46
AD3d at 1076; Smith v Town of Long Lake, 40 AD3d at 1383).
                              -4-                  521771

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, with costs,
motion granted, summary judgment awarded to defendant and amended
complaint dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
