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HAMLET AT WILLOW v. NORTHEAST

64 A.D.3d 85 (2009)

878 N.Y.S.2d 97

HAMLET AT WILLOW CREEK DEVELOPMENT CO., LLC, et al., Respondents-Appellants, v. NORTHEAST LAND DEVELOPMENT CORPORATION et al., Respondents, and PAV-CO ASPHALT, INC., et al., Appellants-Respondents, et al., Defendant. (Appeals No. 1 and 2.) HAMLET AT WILLOW CREEK DEVELOPMENT CO., LLC, et al., Appellants-Respondents, v. NORTHEAST LAND DEVELOPMENT CORPORATION et al., Appellants-Respondents, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Respondent-Appellant, et al., Defendant. (Appeal No. 3.)

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

Decided April 21, 2009.

Attorney(s) appearing for the Case

Pinks, Arbeit & Nemeth, Hauppauge (Steven G. Pinks and Jonathan W. Lipshie of counsel), for Pav-Co Asphalt, Inc., and another, appellants-respondents in appeals No. 1 and 2 and defendants-appellants-respondents in appeal No. 3.

Rosenberg Calica & Birney, LLP, Garden City (Robert M. Calica and Robert J. Howard of counsel), for Hamlet at Willow Creek Development Co., LLC, and others, respondents-appellants in appeals No. 1 and 2 and plaintiffs-appellants-respondents in appeal No. 3.

Glynn Mercep and Purcell, LLP, Stony Brook (Bradley C. Abbott and Timothy Glynn of counsel), for Northeast Land Development Corporation and another, respondents in appeals No. 1 and 2 and defendants-appellants-respondents in appeal No. 3.

Torre, Lentz, Gamell, Gary & Rittmaster, LLP, Jericho (Mark S. Gamell, Kevin M. Gary and Lawrence S. Novak of counsel), for Fidelity and Deposit Company of Maryland, respondent-appellant in appeal No. 3.

CARNI, DICKERSON and CHAMBERS, JJ., concur.

OPINION OF THE COURT

SPOLZINO, J.P.

These appeals and cross appeals arise from the excavation work undertaken in anticipation of the construction of a residential subdivision and golf course in the Town of Brookhaven. The appeals and cross appeals present two principal questions. First, are the defendants responsible for the reimbursement of the owner, the plaintiff Hamlet at Willow Creek Development Co., LLC (hereinafter the Hamlet), for certain fees and...

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