Balnys v. Town of New Baltimore

Mikoll and Harvey, JJ.,

dissent and vote to modify in a memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent.

The town is not required to show that it did not increase the flow of water through the culvert. The town could properly have increased the flow of water through the culvert as long as the increase was not "in such quantity as to exceed its natural capacity resulting in overflow and flooding of land along the stream at lower locations” (Stanklus v County of Montgomery, 86 AD2d 908, 909; accord, Noonan v City of Albany, 79 NY 470). "[A]s long as the natural capacity…