Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Town of Oyster Bay v. Lizza Industries, Inc.

New York Court of Appeals

December 17, 2013

Town of Oyster Bay, Appellant,
v.
Lizza Industries, Inc., Respondent. — No. 215 Town of Oyster Bay, Appellant,
v.
J.D. Posillico, Inc., et al., Respondents. — No. 216 Town of Oyster Bay, Appellant,
v.
Hendrickson Bros., Inc., Respondent. — No. 217 Village of Babylon, Appellant,
v.
Hendrickson Bros., Inc., Respondent. — No. 218 Village of Lindenhurst, Appellant,
v.
Hendrickson Bros., Inc., Respondent. — No. 219 Village of Lindenhurst, Appellant,
v.
Lizza Industries, Inc., Respondent. — No. 220 Town of Oyster Bay, Appellant,
v.
J.D. Posillico, Inc., Respondent. — No. 221 Town of Oyster Bay, Appellant,
v.
S. Zara and Sons Contracting Corporation, Respondent. — No. 222 Town of Oyster Bay, Appellant,
v.
Marvec Allstate, Inc., Respondent. — No. 223 Village of Lindenhurst, Appellant,
v.
J.D. Posillico, Inc., Respondent.

Case Nos. 214, 216, 217, 218 and 219: Michael F. Ingham, for appellant.

John M. Denby, for respondent.

County of Suffolk; Associated General Contractors of New York State, LLC; Eastern Contractors Association, Inc.; and DRI - The Voice of the Defense Bar, amici curiae.

Case No. 215: Michael F. Ingham, for appellant.

Jared T. Greisman, for respondents.

County of Suffolk; Associated General Contractors of New York State, LLC; Eastern Contractors Association, Inc.; and DRI - The Voice of the Defense Bar, amici curiae.

Case Nos. 220, 221, 222 and 223: Michael F. Ingham, for appellant.

Jared T. Greisman, for respondent.

County of Suffolk; Associated General Contractors of New York State, LLC; Eastern Contractors Association, Inc.; and DRI - The Voice of the Defense Bar, amici curiae.

MEMORANDUM

The orders of the Appellate Division should be affirmed, with costs.

This litigation arises out of defendants' construction of a sewer system throughout Nassau and Suffolk Counties (the Counties), including areas under plaintiffs' jurisdiction. In the 1970s, the Counties entered into public works contracts with defendants to perform the sewer construction work. The Counties included "protection clauses" in the contracts, which incorporated statutory language from County Law § 263 requiring defendants to restore plaintiffs' roadways to their "usual condition" after the sewer construction was complete.

Defendants completed their sewer construction work at various points in the 1970s and 1980s. Sometime thereafter, the areas surrounding the sewer lines settled, causing damage to plaintiffs' adjacent roadways, sidewalks, and curbs.

Plaintiffs commenced these 10 related actions in July 2009 alleging a single cause of action in continuing public nuisance. Plaintiffs claimed that defendants "committed faulty workmanship under [the] contracts" by, among other things, "failing to properly excavate and backfill the sewer trenches" and "failing to provide adequate subjacent support to plaintiffs['] roadways, curbs, gutters and other facilities both during and after actual construction operations." This "faulty workmanship, " plaintiffs alleged, "created a continuing public nuisance."

Supreme Court dismissed the complaint in each action, and the Appellate Division affirmed in 10 separate decisions. In its lead decision, Village of Lindenhurst v J.D. Posillico, Inc. (94 A.D.3d 1101 [2d Dept 2012]), the court held that, viewing the complaint as asserting the Village's rights as a third-party beneficiary to the sewer construction contract, "the action is barred by the six-year statute of limitations for a cause of action alleging breach of contract" (94 A.D.3d at 1102). Noting the rule from City School District of City of Newburgh v Stubbins & Associates (85 N.Y.2d 535 [1995]) (" Newburgh ") that a cause of action arising out of defective construction accrues upon completion of the contractual work, the court stated that this rule applies to actions commenced by a third-party beneficiary to the contract (see ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.