Eso v. County of Westchester

141 A.D.2d 542, 529 N.Y.S.2d 155, 1988 N.Y. App. Div. LEXIS 6282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1988
• Status: Published

Opinion

Appeal by the County of Westchester and the Westchester County Police from an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 12, 1986, which granted the respondent’s motion for leave to file a late notice of claim.

Ordered that the order is reversed, on the law, with costs, and the respondent’s motion is denied.

As no action by the respondent was pending against the County of Westchester or the Westchester County Police, his application for leave to serve a late notice of claim was improperly brought as a motion (see, Matter of Lannon v Town of Henrietta, 87 AD2d 980, affd on remand 109 AD2d 1067).

Even if this motion were to be treated as a special proceeding, the respondent did not effectuate service in strict compliance with CPLR 403 (c) and 311 (4). In order to obtain jurisdiction over the county or the County Police, he was required to serve a county official designated under CPLR 311 (4) by personal delivery of the papers to such an official (see, CPLR 403 [c]). Service of the notice of motion by mail upon a law firm which represented the county in various actions does not constitute service upon the proper official (see, Keogh v New York State Dept. of Health, 128 AD2d 841; Matter of Franz v Board of Educ., 112 AD2d 934, lv denied 67 NY2d 603). Bracken, J. P., Kunzeman, Rubin and Spatt, JJ., concur.