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

In Dixon v. City of New York, The Appellate Division, Second Department eld that for a negligent infliction of emotional distress action, the time to serve a §50-(e) notice of claim upon the city does not necessarily commence on the date of the city’s negligence, but rather on the date the plaintiffs became aware of the city’s actions and suffered mental anguish.

In Dixon, the Plaintiffs learned, after the remains of their deceased son were returned by the city following an autopsy, that the remains returned did not include the brain and certain other organs. Plaintiffs did not learn this fact until after the remains were returned and buried, when they received the autopsy report. The city attempted to contend that because the autopsy had been performed more than 90 days after it received notice of the claim, that such claim was time-barred. The Second Department disagreed, noting that the time for providing notice under §50-(e) was when the plaintiffs first learned of the defendants actions and suffered mental anguish.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06775.htm

In Raccah v. Barbizon Hotel Associates, L.P., the plaintiff was sitting on the windowsill in the hallway of an apartment building when three door panels fell onto her right leg. The panels were being stored in the hallway, leaning against a wall, due to ongoing construction on the premises.

The owner and the construction manager moved for summary judgment arguing that they had no duty to the plaintiff, that they did not breach any duty of care and that they had no actual or constructive notice of the condition in the hallway. The court denied the motion because the owner of the building had a duty of care toward the plaintiff and that there was a an issue of fact as to whether the owner had notice of the stored panels on an occupied floor. The construction manager’s motion was denied because it had a supervisor role over the construction at the premises and it hired the subcontractor that was retained to install the subject panels.

Thanks to Maju Varghese for his contribution to this post.

http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32587.pdf