In Moretti v. Croniser Construction Corporation, the Second Department addressed a landowner who brought suit because an abutting neighbor caused water damage during a construction project.

The defendant-landowner was awarded summary judgment, because the plaintiff failed to raise a triable issue of fact as to whether the means of diverting water, which caused the damage, was artificial, and whether the improvements were made in good faith. The Court held that a landowner can not be liable to an abutting neighbor for water damage, “provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches.”

It seems that if a landowner is making improvements to his land while 1) acting in good faith, 2) not diverting water onto adjacent property via artificial means, and 3) having a rational basis for the improvements, he will be shielded from liability for a neighbor’s water damage.

Not surprisingly, the Court declined to comment on protection afforded landowners for “irrational” improvements upon land, nor does the Court opine on examples of what an “irrational” improvement might be. Hopefully, rational minds will prevail in the future.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06783.htm