Dua v. Suffolk County

96 A.D.2d 1072, 466 N.Y.S.2d 710, 1983 N.Y. App. Div. LEXIS 19722

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1983
• Status: Published

Opinion

— Appeal by the Town of Huntington and Huntington Sewer Authority, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Mclnerney, J.), dated March 18, 1982, as granted petitioners’ motion (1) for leave to serve a late notice of claim nunc pro tunc upon the Town of Huntington and the Huntington Sewer Authority and (2) to add the Town of Huntington and the Huntington Sewer Authority as additional parties in an action against Suffolk County and the Suffolk County Sewer Authority. Order reversed insofar as appealed from, on the law, with costs, and petitioners’ motion for leave to serve a late notice of claim upon the Town of Huntington and the Huntington Sewer Authority and to add them as parties denied. Special Term was without jurisdiction to grant the application after the expiration of the applicable Statute of Limitations (see General Municipal Law, § 50-e, subd 5; § 50-i, subd 1; Moore v City of New York, 84 AD2d 562, affd 56 NY2d 950). It should be noted that although petitioners alleged that they were misled as to who was the owner of the sewer which malfunctioned and caused damage to their property, these allegations were directed solely toward the County of Suffolk. In response to these allegations, Special Term dismissed the third affirmative defense interposed by Suffolk County and Suffolk County Sewer Authority, viz., that “the County of Suffolk does not own, operate, maintain or control [the] sewer district serving plaintiffs’ premises” and those defendants have not appealed from that part of Special Term’s order. Mangano, J. P., O’Connor, Bracken and Niehoff, JJ., concur.