Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered December 12, 2005. The judgment, after a nonjury trial, found in favor of defendants dismissing the action.

Judgment reversed without costs and matter remanded to the court below for a new trial before a different judge limited to the issue of damages against the
landowner.

Plaintiff commenced this small claims action to recover for property damage caused by flooding. Plaintiff alleged that defendants, in preparation of erecting new homes on two adjoining lots, directed the flow of surface water onto plaintiff's property.

A landowner will not be held 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, so long as no pipes, drains, ditches or other artificial means are used to direct water onto the abutting property (see Selter v MCM Distribs., 299 AD2d 332 [2002]; DiMarzo v Fast Track Structures, 298 AD2d 909 [2002]; Tatzel v Kaplan, 292 AD2d 440 [2002]; Gollomp v Dubbs, 283 AD2d 550 [2001], lv denied 96 NY2d 721 [2001]; Dietrich v Cedarcrest Homeowners Assn., 2 Misc 3d 127[A], 2003 NY Slip Op 51689[U] [App Term, 9th & 10th Jud Dists]) and so long as the filling-in operation does not create a defined water course or alter an existing water course (Carrabis v Brooklyn Ash Removal Co., Inc., 249 App Div 746 [1936]; 107 NY Jur 2d, Water § 122).

The uncontroverted evidence at trial established that plaintiff had not had any flooding in her basement until defendants made certain preparations with regard to the erecting of two [*2]homes on the adjoining lots. On the day in question, during a heavy rain, surface water from defendants' property flowed onto plaintiff's property and accumulated around and against plaintiff's residence. As the earth became saturated, the water seeped below the surface and eventually entered plaintiff's basement through and around an underground pipe that ran from a holding tank in her basement through the foundation. The water stopped entering the basement only after local police and fire department employees entered onto defendant's property and diverted the flow of water away from plaintiff's premises.

The foregoing evidence established liability on the part of defendants in that defendants' acts of temporarily creating mounds of dirt on the property prior to filling in the land, thereby changing the grade, constructed an artificial diversion of the water onto plaintiff's property which caused the flooding in her basement on the date in issue (cf. Kossoff v Rathgeb-Walsh, 3 NY2d 583 [1958]). Thus, substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UDCA 1807). In view of the foregoing, the judgment should be reversed and the matter remanded for a new trial before a different judge limited to the issue of damages against the landowner.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: February 7, 2007