Fizzinoglia v. Town of Austerlitz

• Decision Date: 26 April 2012
• Parties: Frank J. FIZZINOGLIA, et al., Plaintiffs, v. TOWN OF AUSTERLITZ, et al., Defendants,andDorothy Bakker, Defendant and Third–Party Plaintiff–Appellant;Asbjorn Lunde, Third–Party Defendant–Respondent, et al., Third–Party Defendant.(And Another Third–Party Action.)
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03256
94 A.D.3d 1381
943 N.Y.S.2d 267

Frank J. FIZZINOGLIA, et al., Plaintiffs,
v.
TOWN OF AUSTERLITZ, et al., Defendants,andDorothy Bakker, Defendant and Third–Party Plaintiff–Appellant;Asbjorn Lunde, Third–Party Defendant–Respondent, et al., Third–Party Defendant.(And Another Third–Party Action.)

Supreme Court, Appellate Division, Third Department, New York.

April 26, 2012.

[943 N.Y.S.2d 268]

Pemberton and Briggs, Schenectady (Paul Briggs of counsel), for Dorothy Bakker, defendant and third-party plaintiff-appellant.

O'Connor, O'Connor, Bresee & First, P.C., Albany (George J. Hoffman Jr. of counsel), for Charles W. Schroth and another, defendants and third-party plaintiffs-appellants.

Maguire Cardona, P.C., Albany (Alicia M. Dodge of counsel), for third-party defendant-respondent.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

ROSE, J.P.

[94 A.D.3d 1382] Appeals from an order of the Supreme Court (McGrath, J.), entered February 3, 2011 in Columbia County, which granted third-party defendant Asbjorn Lunde's motion for summary judgment dismissing the third-party complaints against him.

Plaintiffs own a parcel of property containing a seven-acre pond on Dugway Road in the Town of Austerlitz, Columbia County. Directly across Dugway Road from plaintiffs' property are three parcels of property that are accessed by a private road known as Blueberry Lane. Defendant Dorothy Bakker owns Blueberry Lane. Defendants Charles W. Schroth and Carolyn F. Schroth, along with Bakker and defendants Jonathan R. Stotts and Shannon E. Stotts, are responsible for maintenance of Blueberry Lane. Plaintiffs commenced this action in 2007 for trespass, nuisance and negligence against these neighboring property owners and defendant Town of Austerlitz, as well as its Highway Department, alleging that, in 2005, defendants constructed and maintained culverts, trenches and drainage ditches under Dugway Road and in the vicinity of Blueberry Lane that caused water and debris to contaminate their pond. As relevant here, Bakker and the Schroths (hereinafter collectively referred to as third-party plaintiffs) commenced third-party actions for contribution against the previous owner of their parcels, third-party defendant Asbjorn Lunde, alleging that plaintiffs' damages, if any, were caused by Lunde's negligence in the design and construction of Blueberry Lane and the storm water runoff system. Following joinder of issue and discovery, Lunde moved for...