Book v. Dilworth

114 A.D.2d 434, 494 N.Y.S.2d 347, 1985 N.Y. App. Div. LEXIS 53126

Opinion

—In an action to recover possession of certain chattels, defendants appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Sherman, J.), dated February 15, 1984, which, upon their motion pursuant to CPLR 3211 to dismiss the complaint, treated the motion as one for summary judgment and thereupon granted the same to the plaintiff.

Order and judgment reversed, on the law, without costs or disbursements, and motion to dismiss the complaint granted.

Plaintiff’s action must be dismissed for failure to timely serve a notice of claim (see, Matter of Oakley v Police Prop. Clerk of Nassau County, 75 AD2d 816).

We find no basis in the record for estopping defendants from asserting the necessity for plaintiff to serve and allege the service of a notice of claim (cf. Bender v New York City Health & Hosps. Corp., 38 NY2d 662). Finally, we note that the instant action was preceded by two CPLR article 78 proceedings brought by plaintiff, that both proceedings were dismissed, and that plaintiff did not appeal from the judgments in those proceedings. The first judgment (dated June 17, 1982), states that with respect to general receipt invoice No. 81-00025 "petitioner has received the items he was entitled to”. The items that had been held back—and which thus, implicitly, he was not entitled to—included the very items which are the subject of the present action. By not appealing from the prior judgment, plaintiff failed to, challenge that determination. Mangano, J. P., Thompson, Brown and Fiber, JJ., concur.