Dietrich v Cedarcrest Homeowners Assn.

[*1] Dietrich v Cedarcrest Homeowners Assn. 2003 NY Slip Op 51689(U) Decided on December 22, 2003 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 22, 2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DOYLE, P.J., RUDOLPH and SKELOS, JJ.
NO. 2002-1751 OR C

TAMMY DIETRICH, Respondent,

against

CEDARCREST HOMEOWNERS ASSOCIATION, C/O REALTY MANAGEMENT CONCEPTS, Appellant.

Appeal by defendant from a small claims judgment of the Justice Court, Village of

Florida, Orange County (D. Coleman, J.), entered June 4, 2002, which awarded plaintiff the sum of $3,000.

Judgment unanimously reversed without costs and action dismissed.

In this small claims action, plaintiff seeks to recover damages for personal injuries she sustained when she slipped and fell on wet grass adjacent to the residence she was renting. Plaintiff claims that defendant, a homeowners' association, is liable to her because defendant built a retaining wall adjacent to her property line and water flows through the retaining wall and across a six inch strip of property owned by defendant where it then forms pools on plaintiffs lawn which has inadequate drainage to accommodate the water.

"It is well settled that a landowner will not be held liable for damages * * * 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 * * *" (Tatzel v Kaplan, 292 AD2d 440, 441 [2002][citations omitted]; see also Kossoff v Rathgeb-Walsh, 3 NY2d 583 [1958]; Gollomp v Dubbs, 283 AD2d 550 [2001]; Betancourt v City of New York, 194 AD2d 759 [1993]). Inasmuch as the retaining wall was apparently built in good faith so that the adjacent property could be put to a rational use and defendant did not use a pipe, drain or ditch to direct surface water onto plaintiffs property, defendant is not liable to plaintiff for any damages which plaintiff sustained when she slipped and fell due to the water (see Kossoff, 3 NY2d 583; Tatzel, 292 AD2d 440; Gollomp, 283 AD2d 550; Betancourt, 194 AD2d 759). Since the judgment did not render substantial justice in accordance with the rules and principles of [*2]substantive law (see UJCA 1807), the judgment must be reversed and the action dismissed.
Decision Date: December 22, 2003