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Property repairs can disrupt the flow of surface water and cause flooding of adjoining structures. Is there liability when such damage occurs? According to an appellate court decision, the answer will depend on the underlying facts and circumstances.

In Congregation B'nai Jehuda v Hiyee Realty Corp , the Congregation filed suit against its neighbor, Hiyee, for flood-related damage that was allegedly caused by Hiyee's negligence, trespass and nuisance. But in order to establish these latter two claims the opponent's intention to cause damage or harm (or to intrude on another's property) will be key. (A trespass typically requires an "intentional intrusion," while nuisance requires an "an intentional interference" with another's right to use and enjoy property.)

When the Congregation moved for summary judgment -- a decision based solely on the parties' written submissions, without the formality of a hearing or trial -- the New York County Supreme Court ruled in the Congregation's favor. On appeal, the Appellate Division, First Department, modified that outcome.

Since the improvements made to Hiyee's property were not designed to divert water onto the Congregation's property, no liability for "trespass" or "nuisance" could attach.

As the AD1 noted in its decision: 

It is well settled that a landowner is not liable for damages to abutting property caused by the flow of surface water due to improvements to his or her land, 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 or ditches ... The court's finding that "waters are being artificially diverted onto [plaintiff's] property from pipes, leaders and gutters on the adjacent property" is not supported by the record. Indeed, plaintiff's own expert reports that all rain water is drained onto defendants' property, and is not diverted onto plaintiff's property by the use of pipes or other artificial means. Where seepage occurs as a result of the natural grade of property, in the absence of any claim that such grade was created for the express purpose of diverting water onto another's property, there can be no nuisance or trespass liability therefor ....

While the conduct did not trigger a nuisance or a trespass, the Congregation was permitted to pursue a negligence claim -- based on Hiyee's purported failure to repair its drainage system.


For a copy of the Appellate Division's decision, please use this link: Congregation B'nai Jehuda v Hiyee Realty Corp