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

450
CA 11-02197
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


KATHLEEN PRACHEL, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF WEBSTER, DEFENDANT-APPELLANT.


CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (J.
MICHAEL WOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), AND RICHARD J.
LIPPES & ASSOCIATES, BUFFALO, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Harold
L. Galloway, J.), entered January 3, 2011. The order denied the
motion of defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
seeking to limit plaintiff’s recoverable property damages to those
accruing within the 90 days prior to service of the notice of claim
and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action asserting causes of
action for trespass, nuisance and negligence. She sought damages for
injuries she sustained and for damage to her property as the result of
flooding allegedly caused by defendant’s artificial diversion of
surface water through its storm and surface water drainage system.
Defendant moved for summary judgment dismissing the complaint on the
ground that its drainage system was not the cause of the flooding on
plaintiff’s property. Alternatively, defendant moved for summary
judgment dismissing the negligence cause of action and limiting the
damages recoverable under the trespass and nuisance causes of action
to those accruing within 90 days prior to the service of the notice of
claim (see General Municipal Law § 50-e [1] [a]), or one year and 90
days prior to the commencement of the action (see § 50-i [1]).
Supreme Court denied the motion in its entirety.

     To establish liability for damages from the flow of surface water
onto her property, plaintiff is required to demonstrate that defendant
diverted the surface water by artificial means “or that the
improvements [made by defendant] 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 Kossoff v
Rathgeb-Walsh, 3 NY2d 583, 589-590; Smith v Town of Long Lake, 40 AD3d
                                 -2-                           450
                                                         CA 11-02197

1381, 1383). Paving alone—as opposed to pipes, sluices, drains or
ditches—does not constitute an artificial means of diversion (see
Cottrell, 170 AD2d at 911; see also Friedland v State of New York, 35
AD2d 755, 756). Here, it is undisputed that defendant owns a surface
water drainage system that collects and diverts water across
plaintiff’s property. That system includes, inter alia, culvert pipe,
a drainage ditch and a catch basin. Plaintiff alleges that
defendant’s drainage system has altered natural flows and created a
storm water detention zone on her property. According to plaintiff,
the detention zone created by the increased run-off from a new housing
subdivision is inadequately drained and is a significant contributor
to the excess water in the soil surrounding plaintiff’s house.

     Even assuming, arguendo, that defendant established its
entitlement to summary judgment dismissing the complaint, we conclude
that the affidavit of plaintiff’s engineer submitted in opposition to
the motion was sufficient to raise a triable issue of fact whether
defendant’s drainage system altered the natural flow of surface water
to create a storm water detention zone and flooding on plaintiff’s
property (see Pluchino v Village of Walden, 63 AD3d 897, 897).
Further, that affidavit was also sufficient to raise a triable issue
of fact whether defendant was negligent in the maintenance of the
drainage system and whether such negligence was a proximate cause of
water intrusion into plaintiff’s basement (cf. Hongach v City of New
York, 8 AD3d 622, 622).

     Contrary to defendant’s contention, we conclude that plaintiff
properly served the notice of claim within 90 days of her discovery of
the alleged personal injuries (see CPLR 214-c [3]; General Municipal
Law § 50-e [1] [a]). Further, inasmuch as plaintiff commenced this
action within one year and 90 days from the date of that discovery,
her personal injury claim based upon the growth of toxic mold
allegedly caused by the water intrusion into her basement was timely
interposed (see § 50-i [1]; CPLR 214-c [3]). We agree with defendant,
however, that because plaintiff discovered the mold growth in her home
several years prior to serving the notice of claim, any damages
awarded under that part of the negligence cause of action based on
property damage must be limited to those resulting from any negligent
acts that defendant committed within the 90 days prior to service of
the notice of claim (see General Municipal Law § 50-e [1] [a]).

     Finally, inasmuch as plaintiff conceded in opposition to the
motion that her damages under the trespass and nuisance causes of
action insofar as they were based on property damage were limited to
those damages sustained within 90 days prior to the date of filing of
her notice of claim, she is estopped from taking a contrary position
on appeal (see generally Mitchell v La Barge, 257 AD2d 834, 835).
Although we agree with plaintiff that “[c]ompliance with sections 50-e
and 50-i of the General Municipal Law is not required where a
plaintiff seeks equitable relief to abate or enjoin a nuisance and
incidentally seeks money damages for past conduct” (Baumler v Town of
Newstead, 198 AD2d 777, 777), plaintiff’s pleadings contain no claim
for equitable relief. We therefore modify the order by granting that
part of defendant’s motion seeking to limit the damages plaintiff may
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                                                         CA 11-02197

recover for property damage to those accruing within the 90 days prior
to service of the notice of claim.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
