1. Introduction
Brew v Brew addresses when residential improvements that increase impervious surfaces can support claims arising from stormwater runoff onto neighboring property. Applying established New York surface-water principles, the Third Department held that the plaintiff’s observations, photographs, video recordings, and engineering affidavit raised a factual question about whether a cabin addition and paved driveway artificially diverted water onto his land.
The decision is significant because the plaintiff’s engineer did not identify changes to the property’s slope or grade. Instead, the engineer explained how replacing a naturally irregular, partially absorbent surface with roofing and pavement could alter drainage and increase runoff. That evidence was sufficient to prevent summary dismissal, notwithstanding the defendants’ permits and municipal assessment that the addition occupied an already impervious area.
The court did not establish liability or declare that every roof or driveway constitutes an actionable artificial diversion. Its narrower holding is that the hydrological effects of newly impervious surfaces can present a triable issue even without evidence of regrading or conventional drainage structures.
2. Background and Procedural History
Defendants Robert D. Brew and the other respondents had owned a seasonal vacation cabin in the Town of Bolton, Warren County, since the 1980s. Plaintiff Andrew H. Brew Jr. acquired the adjoining property in 2015. His property contained two seasonal cabins.
The properties shared a sloped boundary, with defendants’ cabin approximately 30 feet higher than plaintiff’s property. Beginning in 2017, defendants renovated their cabin, ultimately adding approximately 600 square feet and constructing a paved driveway. In 2020, plaintiff observed water beneath his northernmost cabin, the cabin closest to defendants’ property, and erosion affecting its supporting piers.
Plaintiff commenced this action in 2022, asserting trespass, nuisance, and other claims. He alleged that defendants’ improvements redirected stormwater onto his property and caused damage. Following discovery, defendants sought partial summary judgment dismissing the trespass and nuisance causes of action, arguing that their improvements did not divert water by artificial means.
Supreme Court accepted that argument and partially granted the motion. The procedural scope was important:
- The first and second causes of action alleged trespass and nuisance.
- The third cause of action concerned the new driveway and was not the subject of the summary judgment motion.
- The fourth cause of action sought injunctive relief and was dismissed only insofar as it concerned the addition, not the driveway.
Plaintiff appealed from the adverse ruling.
3. Summary of the Opinion
The Third Department agreed that defendants initially satisfied their summary judgment burden. Their evidence included municipal approvals, an assessment that the addition would occupy an already impervious bedrock area, and assertions that construction involved no addition or removal of soil, rock, or other material.
Nevertheless, plaintiff supplied sufficient contrary evidence to require a trial. His engineer disputed the premise that the preexisting ground was entirely impervious and explained how the improvements significantly altered drainage and increased surface-water flow onto plaintiff’s property. Plaintiff’s own observations and visual recordings supported that assessment.
The appellate court therefore modified the order by reversing the portion that partially granted defendants’ motion, denied that motion, and otherwise affirmed, without costs. The ruling restored the challenged claims to litigation; it did not resolve liability, damages, or entitlement to an injunction.
4. Analysis
A. The Governing Surface-Water Rule
Under the rule applied by the court, landowners who improve their property are not liable merely because the improvements cause surface water to flow onto adjoining land. Protection depends on two conditions:
- The improvements must be undertaken in good faith to enhance the property’s usefulness.
- The landowners must not use artificial means to divert water onto the neighboring property.
The parties agreed that defendants acted in good faith to improve their property. The appeal therefore concerned only the artificial-means requirement.
Pipes and drains are familiar examples of artificial diversion, but they do not exhaust the category. Significant changes to natural contours, including swales, berms, and substantial soil additions or removals, may also qualify. More broadly, the inquiry considers whether the improvements’ net effect changed, channeled, or increased surface-water flow onto neighboring land so as to proximately cause damage.
This functional approach explains the result: the absence of regrading did not end the inquiry when plaintiff offered evidence that newly impervious surfaces materially altered stormwater behavior.
B. Precedents Cited and Their Influence
WFE Ventures, Inc. v GBD Lake Placid, LLC
197 AD3d 824, 827, 829–830 [3d Dept 2021].
This decision supplied both the procedural framework and a central substantive principle. It establishes that summary judgment requires the moving party first to demonstrate the absence of material factual disputes. Only then must the opponent produce evidence showing that a trial is necessary; unsupported assertions do not suffice.
Substantively, it recognizes that artificial diversion can arise from substantial alterations to natural slopes and from improvements whose net effect changes, channels, or increases runoff onto neighboring property, causing damage. The Third Department relied on that effects-based formulation to assess the roofing and pavement evidence in Brew. It also cited the case when concluding that plaintiff’s submissions raised a triable issue.
517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC
156 AD3d 1187, 1189, 1191 [3d Dept 2017].
This case supplied the court’s express statement of the governing rule: good-faith improvements generally do not create liability for resulting surface-water flow unless artificial means divert the water onto adjoining land.
The opinion also cited it in support of finding plaintiff’s opposition sufficient. Its influence therefore extended beyond defining the rule to supporting the conclusion that a factual dispute about artificial diversion should survive summary judgment.
Kossoff v Rathgeb-Walsh
3 NY2d 583, 590 [1958].
This Court of Appeals authority underpins the surface-water framework applied by the Third Department. Its citation places the decision within established statewide doctrine rather than a newly created theory of runoff liability. The governing balance protects legitimate property improvements while preserving potential liability for harmful artificial diversion.
Silverman v Doell
138 AD3d 1339, 1340–1341 [3d Dept 2016], lv dismissed 28 NY3d 1083 [2016].
The court cited this decision both for the general surface-water rule and for an important procedural limitation on plaintiff’s argument.
Plaintiff contended that artificial diversion categorically could not be resolved on summary judgment. The court expressly rejected that proposition, citing Silverman v Doell. Thus, defendants did not lose because this category of dispute always requires a trial. They lost because this particular record contained a material factual conflict.
Smith v Town of Long Lake
40 AD3d 1381, 1383 [3d Dept 2007].
This decision was cited initially as authority for the governing surface-water rule. In evaluating plaintiff’s opposing evidence, however, the court cited it comparatively rather than as direct support for denying summary judgment.
That contrasting treatment reinforces the record-specific character of the inquiry. The existence of runoff damage does not itself establish artificial diversion; the evidence must connect the challenged improvements to an actionable alteration of water flow.
Long v Sage Estate Homeowners Assn., Inc.
16 AD3d 963, 965 [3d Dept 2005], lv dismissed 5 NY3d 756 [2005].
This case supported the proposition that artificial means extend beyond pipes and drains to significant alterations of the land’s natural slope. Together with WFE Ventures, Inc. v GBD Lake Placid, LLC, it illustrated the broader range of physical interventions that can affect drainage.
In Brew, those examples were not treated as an exclusive checklist. The court proceeded to consider the different mechanism identified by plaintiff’s engineer: the creation of impervious surfaces.
Burgher v AF III Props., LLC
80 AD3d 1055, 1057 [3d Dept 2011].
The court cited this decision in its concluding determination that plaintiff had raised a factual issue concerning artificial diversion. Its role was to support the sufficiency of the opposing proof and the need for further proceedings. The supplied opinion does not describe that precedent’s underlying facts, so a more detailed factual analogy would go beyond the text.
C. Why Defendants Met Their Initial Burden
Defendants presented a coherent explanation for why their improvements had not artificially diverted runoff:
- A September 2017 zoning compliance certificate stated that the renovations complied with applicable zoning, stormwater, erosion-control, subdivision, and sanitary requirements.
- An October 2017 email from the zoning administrator stated that the addition’s location was already impervious because of ledge rock, allowing that area to be deducted from stormwater calculations.
- Defendants asserted that they had neither added nor removed soil, rock, or other construction-site material and had removed only two small trees.
The appellate court held that this evidence satisfied defendants’ initial burden. That conclusion matters: the municipal documents were legally relevant, and the motion was not deficient at its outset. The burden shifted to plaintiff to produce substantive contrary evidence.
D. Why Plaintiff’s Evidence Required a Trial
Plaintiff’s response combined observations of changed conditions with a technical explanation of their possible cause.
He stated that he inspected his cabins’ foundations at least twice yearly after purchasing the property and had observed no standing water or water-related problems before construction of the addition. After construction, he observed standing water around the northern cabin’s piers and a center pier that was “washing out.” Photographs documented these conditions. Videos showed water streaming down defendants’ paved driveway during rain and allegedly onto plaintiff’s property.
Civil engineer Erik Sandblom supplied the critical technical link. Based on site observations and relevant documents, he described the preconstruction surface as fractured bedrock containing crevices and depressions, covered with moss, roots, vegetation, and duff. Those features could retain water and impede runoff. He contrasted that surface with the addition’s completely impervious, flat roof.
Sandblom identified 460 square feet of new roof and 780 square feet of new parking or driveway area—more than 1,000 square feet of newly constructed impervious surface. He opined that the improvements significantly and artificially changed drainage patterns and increased surface-water flow onto plaintiff’s property.
These particulars distinguished the affidavit from a bare assertion that construction must have caused later damage. Although the engineer did not identify slope or grade changes, his explanation directly challenged defendants’ premise that the improvements had not materially changed the site’s runoff characteristics.
E. Regulatory Compliance Was Relevant but Not Conclusive
The decision separates municipal approval from the private-law question of harmful diversion. Permits and regulatory assessments helped defendants establish their initial entitlement to judgment, but did not conclusively determine how stormwater actually behaved after construction.
The factual conflict was specific: the zoning administrator regarded the ledge-rock area as already impervious, while plaintiff’s engineer identified features capable of retaining water and slowing runoff. At the summary judgment stage, the court could not finally resolve that competing assessment against plaintiff.
The opinion therefore does not invalidate the permits or determine that defendants violated stormwater regulations. It establishes that regulatory approval did not eliminate the factual dispute presented by the civil claims.
F. What the Court Did Not Decide
- It did not find that defendants actually caused the claimed damage.
- It did not hold that roofing or paving automatically constitutes artificial diversion.
- It did not resolve all elements of trespass or nuisance.
- It did not award damages or order drainage modifications.
- It did not establish entitlement to injunctive relief.
- It did not hold that artificial-diversion disputes are categorically unsuitable for summary judgment.
The holding concerns evidentiary sufficiency: plaintiff produced enough evidence to require further adjudication.
5. Potential Impact
A broader practical focus on drainage effects. Future runoff disputes may examine not only pipes, drains, and earthmoving, but also whether roofing and pavement replaced surfaces that previously stored, absorbed, or slowed water. Unchanged topography does not necessarily mean unchanged drainage.
Greater importance of site-specific expert evidence. The decision illustrates the value of an engineer identifying the original surface characteristics, the extent of new impervious coverage, and the mechanism connecting those changes to increased runoff. It does not prescribe a universal testing or modeling requirement.
Limits on reliance upon permits. Approved plans and municipal compliance documents remain important evidence, but property owners cannot assume that they conclusively defeat neighboring owners’ civil claims.
Continued availability of summary judgment. The court preserved summary judgment as a potential means of resolving artificial-diversion claims. The decisive question remains whether the actual record contains a material factual dispute, not whether stormwater litigation inherently requires trial.
Overall, Brew is best understood as a meaningful application of existing doctrine to impervious-surface development, rather than a wholesale change in New York surface-water law.