Brew v. Brew

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CV-25-0527

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Brew v Brew

2026 NY Slip Op 06187 October 22, 2026 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Andrew H. Brew Jr., Appellant,

Robert D. Brew et al., Respondents.

Decided and Entered:October 22, 2026

CV-25-0527

Calendar Date: September 10, 2026

Before: Aarons, J.P., Reynolds Fitzgerald, Fisher, Powers And Mackey, JJ. Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Karla Williams Buettner of counsel), for appellant. Carusone & Carusone, Saratoga Springs (John J. Carusone Jr. of counsel), for respondents. [*1]

Mackey, J.

Appeal from an order of the Supreme Court (Martin Auffredou, J.), entered February 20, 2025 in Warren County, which partially granted defendants' motion for partial summary judgment dismissing certain causes of action. Since the 1980s, defendants have owned a seasonal vacation cabin located on property in the Town of Bolton, Warren County. In 2015, plaintiff acquired the adjoining property, upon which sit two seasonal vacation cabins. The boundary between the parties' respective properties is sloped, with defendants' cabin sitting approximately 30 feet higher in elevation than plaintiff's property. Beginning in 2017, defendants renovated portions of their cabin, ultimately adding a roughly 600-square-foot addition to the structure and a paved driveway. Thereafter, in 2020, plaintiff noticed water underneath his northernmost cabin, which is located closest to defendants' property and the sloped property boundary, as well as erosion on the support piers of that cabin.

In 2022, plaintiff commenced this action for trespass and nuisance, among other things, alleging that defendants' improvements caused stormwater runoff to be diverted onto plaintiff's property resulting in damage. Discovery ensued, and defendants moved for partial summary judgment on the basis that â as to plaintiff's first and second causes of action for trespass and nuisance â defendants' improvements did not constitute an artificial means by which stormwater runoff was diverted onto plaintiff's property.^FN1 Plaintiff opposed the motion. Following oral argument, Supreme Court partially granted defendants' motion, finding that defendants had met their burden of showing that no artificial means were used to divert water onto plaintiff's property and that plaintiff failed to raise an issue of fact in this regard.^FN2 Plaintiff appeals.

"[S]ummary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action" (WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d 824, 827 [3d Dept 2021] [internal quotation marks and citations omitted]). In opposing such a motion, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (id. [internal quotation marks and citation omitted]).

"[L]andowners 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" (517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 156 AD3d 1187, 1189 [3d Dept 2017] [internal quotation marks and citation omitted]; see Kossoff v Rathgeb-Walsh, [*2]3 NY2d 583, 590 [1958]; Silverman v Doell, 138 AD3d 1339, 1340 [3d Dept 2016], lv dismissed 28 NY3d 1083 [2016]; Smith v Town of Long Lake, 40 AD3d 1381, 1383 [3d Dept 2007]). Actionable "artificial means" have been found to include the diversion of surface water by significant changes to "the natural slope" of the land, such as the construction of a swale, berm, or the addition or removal of large volumes of soil (WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d at 829; see Long v Sage Estate Homeowners Assn., Inc., 16 AD3d 963, 965 [3d Dept 2005], lv dismissed 5 NY3d 756 [2005]). "[T]he diversion of water by artificial means . . . may .

. . be established where it is demonstrated that the net effect of the defendant's improvements so changed, channeled or increased the flow of surface water onto the plaintiff's land as to proximately cause damage to the property" (WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d at 829 [internal quotation marks, brackets and citations omitted]).

The parties do not dispute that defendants' improvements were executed in good faith to enhance the usefulness of their property. Accordingly, the issue here distills to whether those improvements diverted stormwater onto plaintiff's property by artificial means.^FN3 To this end, defendants submitted documentation establishing that they had sought and obtained the necessary permits to build the addition to their cabin, including a September 2017 zoning compliance certificate stating that defendants' renovations were "in compliance with the Town of Bolton Zoning Code, Stormwater and Erosion Control Regulations, Subdivision Regulations and Town Sanitary Code." Defendants further proffered an October 2017 email from the Town of Bolton zoning administrator, wherein the administrator stated that, "[a]fter inspecting the location where the addition will be placed on the camp, [it was] determined that the area is already impervious due to the ledge rock in that location. Therefore, the impervious area for the addition can be deducted from the calculations for stormwater." Moreover, defendants asserted that they did not remove or add any soil, rock or other material to the building site in the construction of the addition, having only removed two small trees on the property. In view of the foregoing, we agree with Supreme Court that defendants met their initial burden on summary judgment, shifting the burden to plaintiff to raise an issue of fact as to whether defendants' improvements diverted surface water to plaintiff's property by artificial means.

In opposition, plaintiff averred that following his acquisition of the property in 2015, he would check the foundation of the cabins on his property at least twice a year and that, prior to the construction of defendants' addition, he "never observed any standing water or water related issues." Following the construction of the addition, however, plaintiff observed that the center pier on the northernmost portion of the northern [*3]cabin was "washing out" and that standing water was present in areas surrounding the piers. Plaintiff also submitted numerous photographs showing this condition as well as video recordings of water streaming down defendants' newly constructed paved driveway during a rainstorm and allegedly onto plaintiff's property. Plaintiff further relied upon the affidavit of Erik Sandblom, a civil engineer with "specialty training and experience in stormwater management, hydrology, and hydraulics." In his affidavit, Sandblom found that the area around defendants' addition "consisted of a bedrock surface with fractures, crevices, and depressions and was covered in moss, roots, vegetation, and duff" indicating a "natural ground surface that is not entirely impervious that would capture stormwater and impede runoff," which he found to be "unlike the completely impervious and flat roof surface" of the addition itself. Although he did not note changes to the slope or grade of defendants' property, based upon his visual observations at the properties and review of relevant documentation, Sandblom opined that the construction of defendants' improvements "significantly and artificially altered stormwater drainage patterns and [had] produced an increase in the flow of surface water onto [p]laintiff's property." In this regard, Sandblom noted that defendants' improvements resulted in the "creation of 460 square feet of new roof and 780 square feet of new parking area/driveway . . . result[ing] in the creation of more than 1,000 square feet of newly constructed impervious surface." Upon this record, we find plaintiff's submissions sufficient to raise an issue of fact as to whether defendants' improvements to their property resulted in the diversion of surface water to plaintiff's property by artificial means (see WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d at 829-830; 517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 156 AD3d at 1191; Burgher v AF III Props., LLC, 80 AD3d 1055, 1057 [3d Dept 2011]; compare Smith v Town of Long Lake, 40 AD3d at 1383). Accordingly, defendants' motion for partial summary judgment on this issue should not have been granted.

Aarons, J.P., Reynolds Fitzgerald, Fisher and Powers, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially granted defendant's motion for summary judgment; said motion denied; and, as so modified, affirmed.

Footnotes

Footnote 1 Plaintiff's third cause of action relates to defendants' creation of a new driveway and was not the subject of defendants' summary judgment motion.

Footnote 2

Plaintiff's fourth cause of action sought injunctive relief and was dismissed solely as to defendants' addition, but not the driveway.

Footnote 3

We reject plaintiff's argument that, categorically, the issue of artificial means is not properly the subject of a summary judgment motion (see e.g. Silverman v Doell, 138 AD3d at 1341).

Brew v. Brew

Brew v. Brew

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