Opinion
2012-04-24
TOWN OF OYSTER BAY, appellant, v. J.D. POSILLICO, INC., respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham of counsel), for appellant. Agovino & Asselta, LLP, Mineola, N.Y. (Joseph P. Asselta and John M. Comiskey of counsel), for respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham of counsel), for appellant. Agovino & Asselta, LLP, Mineola, N.Y. (Joseph P. Asselta and John M. Comiskey of counsel), for respondent.
In an action to recover damages for continuing public nuisance, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered January 5, 2011, as, upon renewal, in effect, vacated so much of its prior order entered April 9, 2010, as denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred, and thereupon granted that branch of the motion.
ORDERED that the order entered January 5, 2011, is affirmed insofar as appealed from, with costs.
The plaintiff alleges that, pursuant to a contract with Nassau County, the defendant completed certain sewer construction work in 1978, and that defects in the construction work constitute and contribute to a continuing public nuisance. The action is time-barred for the reasons stated in the companion case of Village of Lindenhurst v. J.D. Posillico, Inc., 94 A.D.3d 1101, ––– N.Y.S.2d ––––, 2012 WL 1415133 [decided herewith].
The plaintiff's contentions relating to alleged statutory violations are not properly before this Court.