| Town of Oyster Bay v J.D. Posillico, Inc. |
| 2012 NY Slip Op 03169 [94 AD3d 1093] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Town of Oyster Bay, Appellant, v J.D. Posillico, Inc., et al.,Respondents. |
—[*1] Agovino & Asselta, LLP, Mineola, N.Y. (Joseph P. Asselta and John M. Comiskey ofcounsel), for respondent J.D. Posillico, Inc. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondentLizza Industries, Inc.
In an action to recover damages for continuing public nuisance, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.),entered January 5, 2011, as (1), upon renewal, in effect, vacated so much of its prior orderentered April 9, 2010, as denied that branch of the motion of the defendant J.D. Posillico, Inc.,which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against itas time-barred, and thereupon granted that branch of the motion, and (2) granted the separatemotion of the defendant Lizza Industries, Inc., for summary judgment dismissing the complaintinsofar as asserted against it as time-barred.
Ordered that the order entered January 5, 2011, is affirmed insofar as appealed from, withone bill of costs.
The plaintiff alleges that, pursuant to a contract with Nassau County, the defendantscompleted certain sewer construction work in 1978, and that defects in the construction workconstitute and contribute to a continuing public nuisance. The action is time-barred for thereasons stated in the companion case of Village of Lindenhurst v J.D. Posillico, Inc. (94AD3d 1101 [2012] [decided herewith]).
The plaintiff's contentions relating to alleged statutory violations are not properly before thisCourt. Rivera, J.P., Dillon, Angiolillo and Leventhal, JJ., concur.