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1735 University Avenue Associates LLC, Plaintiff-Appellant v. andrews Development Corp.

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 14, 2012

1735 UNIVERSITY AVENUE ASSOCIATES LLC, PLAINTIFF-APPELLANT,
v.
ANDREWS DEVELOPMENT CORP., DEFENDANT-RESPONDENT.

1735 Univ. Ave. Assoc. LLC v Andrews Dev. Corp.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012

Tom, J.P., Andrias, Catterson, Richter, Abdus-Salaam, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered April 27, 2011, which, insofar as appealed from, granted defendant's motion for reargument of its cross motion for summary judgment and, upon reargument, granted the cross motion to the extent of dismissing the allegations that refer to defendant's failure to abate the flow of water, including storm water and effluent, from its property onto plaintiff's property and flooding or damaging it, unanimously affirmed, without costs.

The motion court did not improvidently exercise its discretion in granting reargument and determining that it had overlooked or misapprehended the relevant facts in arriving at its prior decision denying defendant's cross motion for summary judgment in its entirety (see CPLR 2221[d]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992]). Dismissal of plaintiff's allegations regarding defendant's alleged failure to abate the flow of water was proper since, as plaintiff concedes, the cause of the water run-off from defendant's property to plaintiff's property is not the result of an improvement to defendant's property, but rather is caused by the natural configuration of the land. In opposition to the motion, plaintiff failed to establish that the surface water was diverted by defendants through artificial means (see Kossoff v Rathgeb--Walsh, 3 NY2d 583, 589--590 [1958]; Congregation B'nai Jehuda v Hiyee Realty Corp., 35 AD3d 311, 312 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK

20120214

© 1992-2012 VersusLaw Inc.



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