LiFrieri v. Town of Smithtown

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: ANITA R. FLORIO
• Citation: LiFrieri v. Town of Smithtown, 72 AD3d 750, 898 N.Y.S.2d 629 (N.Y. App. Div. 2010)
• Decision Date: 13 April 2010
• Parties: Stephanie LiFRIERI, plaintiff-respondent, v. TOWN OF SMITHTOWN, defendant third-party plaintiff-appellant; Renee S. Lasher, et al., third-party defendants-respondents, et al., third-party defendants.

898 N.Y.S.2d 629

72 A.D.3d 750

Stephanie LiFRIERI, plaintiff-respondent,

v. TOWN OF SMITHTOWN, defendant third-party plaintiff-appellant;Renee S. Lasher, et al., third-party defendants-respondents, et al., third-party defendants.

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

April 13, 2010.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell and Kenneth M. Seidell of counsel), for defendant third-party plaintiff-appellant.

Robert T. Acker, P.C., North Massapequa, N.Y., for plaintiff-respondent.

Timoshenko & Scotto, LLP, Staten Island, N.Y. (Victor Timoshenko of counsel), for third-party defendants-respondents.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Catherine H. Friesen of counsel), for third-party defendants Marianne LiFrieri and Robert W. Combs.

ANITA R. FLORIO, J.P., HOWARD MILLER, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated May 28, 2009, which denied its motion for summary judgment dismissing thecomplaint and the third-party counterclaim asserted against it by the third-party defendants Renee S. Lasher and Neil R. Lasher.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint and the third-party counterclaim asserted against it by the third-party defendants Renee S. Lasher and Neil R. Lasher is granted.

The plaintiff allegedly sustained injuries as a result of a motor vehicle accident on a public roadway. The plaintiff was a passenger in a vehicle owned by the third-party defendant Marianne LiFrieri and operated by the third-party defendant Robert W. Combs, which collided with a vehicle operated by the third-party defendant Renee S. Lasher and owned by the third-party defendant Neil R. Lasher (hereinafter together the Lashers). Prior to the accident, the two vehicles were traveling in opposite directions. Renee Lasher alleged that she lost control of her vehicle due to the presence of hazardous conditions on the road, which caused her vehicle to enter the opposite lane of traffic where the collision occurred.

The plaintiff commenced this action against the Town of Smithtown, and the Town commenced a third-party action against the Lashers, LiFrieri, and Combs. The Lashers asserted a counterclaim for indemnification or contribution against the Town. The Supreme Court denied the Town's motion for summary judgment dismissing the complaint and the third-party counterclaim on the ground that the Town failed to establish, prima facie, that it did not have prior written notice of the alleged hazardous conditions on the road. We reverse.

The Code of the Town of Smithtown § 245-13 states that "[n]o civil action shall be maintained against the Town of Smithtown for damages or injuries to person ... sustained by reason of any highway, bridge, culvert, sidewalk, sewer, manhole or appurtenance or curb being defective, out of repair, unsafe, dangerous or obstructed...