Matter of Canario v. City of Newburgh

Opinion

Matter of Canario v City of Newburgh

2026 NY Slip Op 04945

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Carlos J. Canario, petitioner,

v

City of Newburgh, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2022-01319 DECISION, ORDER & JUDGMENT, (Index No. 4030/21)

Valerie Brathwaite Nelson, J.P.

Lillian Wan

Laurence L. Love

Elena Goldberg Velazquez, JJ.

Bergstein & Ullrich, New Paltz, NY (Stephen Bergstein of counsel), for petitioner.

Keane & Beane, P.C., Melville, NY (Richard K. Zuckerman and Adam S. Ross of counsel), for respondent.

[*1]

Proceeding pursuant to CPLR article 78 to review a determination of the City of Newburgh dated April 20, 2021. The determination adopted the findings of a hearing officer dated April 2, 2021, made after a hearing pursuant to Civil Service Law § 75, that the petitioner was guilty of certain charges of misconduct, and terminated the petitioner's employment as a police officer. In an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated November 10, 2021, the Supreme Court granted the petitioner's motion for leave to serve a late notice of claim and transferred the proceeding to this Court pursuant to CPLR 7804(g).

ORDERED that so much of the order dated November 10, 2021, as granted the petitioner's motion for leave to serve a late notice of claim is vacated; and it is further,

ADJUDGED that the proceeding is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The petitioner was employed as a police officer with the City of Newburgh. In October 2019, the City served the petitioner with two charges of misconduct, alleging, among other things, that he unreasonably used pepper spray on a detainee and that he provided false or inaccurate information about the incident. After a disciplinary hearing pursuant to Civil Service Law § 75, a hearing officer, in a report and recommendation dated April 2, 2021, found the petitioner guilty of misconduct and recommended termination of the petitioner's employment. In a determination dated April 20, 2021, the City adopted the findings of the hearing officer and terminated the petitioner's employment with the City.

In June 2021, the petitioner commenced this proceeding pursuant to CPLR article 78. The City filed an answer with objections in point of law, including that the petitioner failed to serve a notice of claim as required by section C6.47 of the City Charter for the City of Newburgh. In August 2021, the petitioner moved for leave to serve a late notice of claim. In an order dated November 10, 2021, the Supreme Court granted the petitioner's motion for leave to serve a late notice of claim and transferred the proceeding to this Court pursuant to CPLR 7804(g).

Section C6.47(A) of the City Charter for the City of Newburgh provides that, for nontort claims, no action or special proceeding shall be maintained against the City unless "a written verified claim . . . was served on the City . . . within three months after the accrual of such claim." The service of a notice of claim is thus a condition precedent to maintaining an action or proceeding against the City (see Clayton Indus., Inc. v City of Newburgh, 17 AD3d 309, 310). "[S]tatutory requirements conditioning suit against a governmental entity must be strictly construed" (Varsity Tr., Inc. v Board of Educ. of City of N.Y., 5 NY3d 532, 536 [alteration and internal quotation marks omitted]; see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 548).

Here, it is undisputed that the petitioner failed to serve a notice of claim within three months after his claim accrued, as required by section C6.47 of the City Charter for the City of Newburgh. Moreover, unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims (see id. § C6.47[A]; see generally Mohl v Town of Riverhead, 62 AD3d 969, 970). Consequently, since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the petitioner's motion for leave to serve a late notice of claim (see McCulloch v Milan, 74 AD3d 1034, 1035; Mohl v Town of Riverhead, 62 AD3d at 970), and it should have dismissed the proceeding on the ground that the petitioner failed to timely serve a notice of claim as required by section C6.47 of the City Charter for the City of Newburgh.

In light of our determination, we need not address the petitioner's remaining contentions.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court