Abutting Landowners And Municipality Not Liable For Damages Caused By Increased Flow Of Surface Water Onto Plaintiff's Property
July, 2011
In Papadopoulos v. Town of North Hempstead, et.al., 84 A.D. 3d 768, 922 N.Y.S. 2d 4781 (2d Dep't 2011), the Appellate Division, Second Department affirmed a trial court's decision which held that neither of the two abutting landowners, nor the municipality, were liable for property damage caused by an alleged increased water flow onto Plaintiff's property. Plaintiff was seeking recovery from the municipality, the Town of North Hempstead, for property damage allegedly caused by improper design and maintenance of the sewer system which allowed water to accumulate. Plaintiff also claimed that the abutting landowners contributed to the damage by altering their properties, which increased the flow of surface water onto Plaintiff's property.
In its decision, the Court noted that the Town of North Hempstead could not be held liable to Plaintiff for any claims arising out of the negligent design of a sewer system because municipalities in New York are immune from liability for such claims. Id at 482. With regard to Plaintiff's claim for improper and/or negligent maintenance of the sewer system, the Court affirmed the trial court's decision, which held that there was no evidence of poor or improper maintenance. Id. at 482. Therefore, the Court affirmed that all claims against the Town of Hempstead were properly dismissed.
With regard to the two abutting landowners, Andre and Lilliana Frost ("Frost") and Jay and Janice Scansarolis ("Scansarolis"), Plaintiff alleged that improvements or alterations made to these abutting properties by their respective owners caused an increased flow of surface water onto his property, which caused damage. The Court noted that a landowner will not be held liable for damages to an abutting property caused by the flow of surface water caused by improvements to his or her land, provided that the improvements were made in good faith and did not divert water by artificial means such as pipes and ditches. Id. at 482. The Court agreed with the trial court's determination that the improvements made by Frost, which included changes to a basketball court and a Gazebo, were made in good faith and not specifically designed to divert water from to the abutting Premises. Id. at 483. The Court also affirmed the trial court's finding that there was no evidence that any alterations were made to the Scansarolis property. As such, the Court affirmed the dismissal of Plaintiff's claims against Frost and Scansarolis.
Learning Point: Courts still preserve fundamental property rights, and permit and encourage a landowner to alter or improve his land, provided that it is not done to the intentional or calculated detriment of his neighbors. The review and analysis of the precise scope, and specific design of any improvement, will be crucial to evaluating a client's potential liability and exposure in matters such as Papadopoulos. This review and analysis should be performed by the appropriate counsel, and in certain circumstances, with the assistance of appropriate design professionals/consultants.
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