You are here: / / PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING...
, ,

PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING SEWAGE TO BACKFLOW INTO PLAINTIFFS’ HOME; AN INTENTIONAL ENTRY IS ONE OF THE ELEMENTS OF TRESPASS; THEREFORE THE TRESPASS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint which alleged the town negligently failed to maintain a sewer main causing sewage to backflow into plaintiffs’ home did not state a cause of action for trespass, which requires an intentional act:

Among other elements, a claim for trespass requires “an intentional entry” … . Intent, in this context, “is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act” … . Here, accepting the allegations in the amended complaint as true … , we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property … .  Drake v Village of Lima, 2023 NY Slip Op 05833, Fourth Dept 11-17-23

Practice Point: Here the trespass cause of action was based upon the backflow of sewage into plaintiffs’ home allegedly caused by the negligent maintenance of a sewer main. Trespass requires an “Intentional entry” which was not alleged here.

 

You might also like
WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT).
DEFENDANT, WHO WAS CONVICTED OF STATUTORY RAPE (NO FORCE) WHEN HE WAS 18 IN 1996, SHOULD HAVE BEEN CLASSIFIED A LEVEL ONE, NOT LEVEL TWO, RISK (FOURTH DEPT).
Owner/Officer of Company Can Be Personally Liable for Toxic Emissions Released by Company.
ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER JUDGMENT AND THEREFORE CANNOT BE SUBSUMED IN THE JUDGMENT, THE ORDER IS APPEALABLE; PRECEDENT TO THE CONTRARY OVERRULED (FOURTH DEPT).
Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper; The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507
THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).
THE MAJORITY HELD THAT DEFENDANT’S FLIGHT PROVIDED REASONABLE SUSPICION OF CRIMINALITY JUSTIFYING PURSUIT IN THIS STREET STOP SCENARIO; THE DISSENT ARGUED FLIGHT ALONE DURING A LEVEL TWO ENCOUNTER DOES NOT JUSTIFY PURSUIT (FOURTH DEPT).
In a Matter of First Impression, the Fourth Dept Determined that Criminal Records Are Eligible for Sealing Pursuant to CPL 160.58 Even If They Relate to Convictions that Predate the Statute

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE PETITIONERS’ HOUSE WAS DESTROYED BY FIRE AND THE COURT-ORDERED APPRAISAL... TO COMPLY WITH THE CONFRONTATION CLAUSE, THE ANALYST WHO TESTIFIES ABOUT A DNA...