Fourth Department – Property Damage: Krossber v. Cherniss

Appellate Division, Fourth Department – Property Damage – Artificial Means to Divert Water

Krossber v. Cherniss

CA 14-01173

Appealed from Supreme Court, Ontario County

Background: The plaintiffs commenced an action seeking injunctive relief and monetary damages based upon damage to their property allegedly caused by the defendants’ diversion of additional surface water onto the plaintiff’s property. The plaintiffs appealed from summary judgment dismissing their complaint.

Ruling: The Appellate Division affirmed. The court held that a plaintiff 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. While the defendant demonstrated good faith, they admitted that they constructed a berm on their property, which may be considered an artificial means of diverting water.

John E. Tyo of Zimmerman & Tyo for the plaintiffs-appellants; Mark D. Goris of Goris & O’Sullivan for the defendants-respondents