Lannon v. Town of Henrietta

87 A.D.2d 980, 450 N.Y.S.2d 108, 1982 N.Y. App. Div. LEXIS 16516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1982
• Status: Published

Opinion

— Order unanimously reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the following memorandum: The application to serve a late notice of claim pursuant to section 50-e of the General Municipal Law was improperly commenced as a motion since no action was pending against the town. It was proper, however, for Special Term to treat the matter as a special proceeding (Matter of People v Homer, 57 AD2d 703). Personal jurisdiction was acquired over the town when the notice of motion and supporting papers were personally served on the Town Clerk. The town’s opposition to the application on the ground that the court had not acquired personal jurisdiction over the town or jurisdiction over the subject matter, should have been considered as an objection in point of law, in the special proceeding. (CPLR 404.) Under the express provision of that section, when Special Term overruled the objection, it should have given the town permission to defend the application on the merits, by way of answer and answering affidavits. The matter is remitted to Special Term for this purpose. The claimant may also submit any additional proof he may wish, bearing on the factors to be considered by the court in making its determination on the merits (Matter ofZiecker v Town of Orchard Park, 70 AD2d 422, affd 51 NY2d 957; Matter ofWemett v County of Onondaga, 64 AD2d 1025; see Cohen v Pearl Riv. Union Free School Dist., 81 AD2d 876). (Appeal from order of Supreme Court, Monroe County, Curran, J. — notice of claim.) Present — Simons, J. P., Callahan, Denman, Boomer and Moule, JJ.