Judski v. Village of Johnson City

Appellate Division of the Supreme Court of New York

Judski v. Village of Johnson City

226 A.D.2d 862, 640 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 3665

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 1996

StatusPublished

Cited by1 cases

This text of 226 A.D.2d 862 (Judski v. Village of Johnson City) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Judski v. Village of Johnson City, 226 A.D.2d 862, 640 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 3665 (N.Y. Ct. App. 1996).

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Opinion

White, J.

Appeal from an [863]*863order of the Supreme Court (Rose, J.), entered March 30, 1995 in Broome County, which granted defendant’s motion for summary judgment dismissing the complaint.

By summons and complaint dated March 1, 1993, plaintiffs allege that they entered into a real estate purchase-sale contract with defendant on August 8, 1990 which provided for a closing on or about August 30, 1990. Defendant never purchased the subject parcel and plaintiffs commenced this action for breach of contract. Defendant’s answer denied plaintiffs’ principal allegations and set forth various affirmative defenses. Thereafter, defendant moved for summary judgment demonstrating, inter alia, that plaintiffs had not filed (or alleged filing oí) a written verified claim as required by CPLR 9802. Supreme Court granted the motion, prompting this appeal.

We affirm. Compliance with the CPLR 9802, which requires timely filing of a written verified claim, is a condition precedent to be pleaded and proved by the party bringing a breach of contract action against a village (see, Salesian Socy. v Village of Ellenville, 41 NY2d 521, 523; Stage v Village of Owego, 39 NY2d 1017, affg on mem below 48 AD2d 985). As plaintiffs failed to plead the filing of a verified claim (and have admittedly failed to file such a claim), the complaint failed to state a cause of action and was properly dismissed (see, Martz v Incorporated Vil. of Val. Stream, 210 AD2d 205, lv dismissed, lv denied 85 NY2d 955; Solow v Liebman, 175 AD2d 867, 869, lv dismissed 79 NY2d 977).

Mikoll, J. P., Crew III, Casey and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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White, J.

Appeal from an [863]*863order of the Supreme Court (Rose, J.), entered March 30, 1995 in Broome County, which granted defendant’s motion for summary judgment dismissing the complaint.

By summons and complaint dated March 1, 1993, plaintiffs allege that they entered into a real estate purchase-sale contract with defendant on August 8, 1990 which provided for a closing on or about August 30, 1990. Defendant never purchased the subject parcel and plaintiffs commenced this action for breach of contract. Defendant’s answer denied plaintiffs’ principal allegations and set forth various affirmative defenses. Thereafter, defendant moved for summary judgment demonstrating, inter alia, that plaintiffs had not filed (or alleged filing oí) a written verified claim as required by CPLR 9802. Supreme Court granted the motion, prompting this appeal.

We affirm. Compliance with the CPLR 9802, which requires timely filing of a written verified claim, is a condition precedent to be pleaded and proved by the party bringing a breach of contract action against a village (see, Salesian Socy. v Village of Ellenville, 41 NY2d 521, 523; Stage v Village of Owego, 39 NY2d 1017, affg on mem below 48 AD2d 985). As plaintiffs failed to plead the filing of a verified claim (and have admittedly failed to file such a claim), the complaint failed to state a cause of action and was properly dismissed (see, Martz v Incorporated Vil. of Val. Stream, 210 AD2d 205, lv dismissed, lv denied 85 NY2d 955; Solow v Liebman, 175 AD2d 867, 869, lv dismissed 79 NY2d 977).

Mikoll, J. P., Crew III, Casey and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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226 A.D.2d 862, 640 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 3665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judski-v-village-of-johnson-city-nyappdiv-1996.

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