Opinion
MOTION NO. (525.1/23) CA 22-00816
11-17-2023
WEBSTER GOLF CLUB, INC., and B&C Golf, Inc., Plaintiffs-Respondents-Appellants, v. MONROE COUNTY WATER AUTHORITY, Defendant-Appellant-Respondent, O'Brien & Gere Engineers, Inc., LeChase Construction Services, LLC, Fisher Associates, P.E., L.S., L.A., D.P.C., Defendants-Respondents, et al., Defendants.
Motion for reargument or leave to appeal to the Court of Appeals be and the same hereby is granted in part and, upon reargument, the memorandum and order entered August 11, 2023 ( 219 A.D.3d 1136, 195 N.Y.S.3d 339 [4th Dept. 2023] ) is amended bydeleting the second through fourth sentences of the fifth paragraph of the memorandum and substituting the following sentences: The amended complaint, however, characterizes the specific water allegedly interfered with as water that "originate[d] on the property of [MCWA]," consisting of "wetlands on MCWA property, rainwater, groundwater and/or underground springs." Thus, MCWA established, through plaintiffs’ own pleadings, that the specific water allegedly interfered with by MCWA was surface water. A landowner may alter surface waters "although thereby the water is prevented from reaching [the land] and is retained upon the lands above" and although it "prevents the water [from] reaching a natural water-course, as it formerly did" ( Barkley v. Wilcox , 86 N.Y. 140, 147-148 (1881) ;see generally Friedland v. State of New York , 35 A.D.2d 755, 756, 314 N.Y.S.2d 935 [3d Dept. 1970] ).