TOWN OF RIVERHEAD v. LONG ISLAND LIGHTING COMPANY

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

TOWN OF RIVERHEAD, etc., et al., appellants-respondents, v. LONG ISLAND LIGHTING COMPANY, respondent-appellant.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, ANITA R. FLORIO and LEO F. McGINITY, JJ. Sinnreich Wasserman Grubin & Cahill, L.L.P., Hauppauge, N.Y. (Jonathan Sinnreich, Anthony Galanno III, and Douglas J. Lutz of counsel), for appellants-respondents. Ronald J. Macklin, Hicksville, N.Y. (Donald J. Rassiger of counsel), for respondent-appellant.

In an action, inter alia, to enjoin the defendant from continuing an alleged nuisance, (1) the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated August 26, 1997, as denied their cross motion for partial summary judgment and granted those branches of the defendant's motion which were to dismiss the second cause of action and to dismiss all of the causes of action asserted by the plaintiff Town of Riverhead in its parens patriae capacity on behalf of its residents, and (2) the defendant cross-appeals, as limited by its notice of appeal and brief, from so much of the same order as denied those branches of its cross motion which were to dismiss the third and fourth causes of action.

ORDERED that the order is modified by (1) deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the second cause of action, and substituting therefor a provision denying that branch of the motion, and (2) deleting the provision thereof granting those branches of the defendant's motion which were to dismiss the first and second causes of action asserted by the Town of Riverhead in its parens patriae capacity, and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiffs.

 Contrary to the defendant's contention and the holding of the Supreme Court, the complaint states a cause of action to recover damages for breach of the public trust, and the Town properly brought this cause of action in its parens patriae capacity, on behalf of its residents (see, Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995;  cf., Incorporated Vil. of Northport v. Town of Huntington, 199 A.D.2d 242, 243-244, 604 N.Y.S.2d 587).   Accordingly, we reinstate the second cause of action.

 To the extent that the first cause of action, sounding in nuisance, raises a claim of a public nuisance (see generally, Copart Inds. v. Consol. Edison Co. of N.Y., 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968), it was proper for the Town to assert this claim on behalf of its residents as well (see, Alfred L. Snapp & Son v. Puerto Rico, supra, at 604-605, 102 S.Ct. 3260).

 Summary judgment was properly denied to the plaintiffs because material, triable issues of fact exist (see, CPLR 3212[b] ).

There is no merit to the remainder of the parties' contentions.

MEMORANDUM BY THE COURT.

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