Palmieri v. Village of Babylon

26 A.D.3d 423, 809 N.Y.S.2d 566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2006
• Status: Published

Opinion

In an action, inter alia, to recover for damage to property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated December 13, 2004, which denied his motion for leave to amend the complaint and to compel the defendant’s response to his interrogatories.

Ordered that the order is affirmed, with costs.

The plaintiff moved, inter alia, for leave to amend the complaint to increase the amount sought to be recovered for damage to property to the sum of $500,000 and to assert a claim for punitive damages in the sum of $500,000. Since the claims for damages set forth in the amended complaint were more than merely incidental to the equitable relief sought in the original complaint, the plaintiff was required to file a timely notice of claim pursuant to General Municipal Law § 50-e (see CPLR 9801 [1]; Thoma v Town of Schodack, 6 AD3d 957 [2004]; Andrusz v Town of Lancaster, 289 AD2d 950 [2001]; Robertson v Town of Carmel, 276 AD2d 543 [2000]; American Pen Corp. v City of New York, 266 AD2d 87 [1999]). The plaintiff admittedly failed to file a notice of claim and, thus, that branch of his motion which was for leave to amend the complaint was properly denied (see Martz v Incorporated Vil. of Val. Stream, 210 AD2d 205 [1994]; Mathison v Zocco, 207 AD2d 434 [1994]; Hauptman v New York City Health & Hosps. Corp., 162 AD2d 588, 589 [1990]).

The plaintiff’s remaining contention is without merit. Schmidt, J.P., Mastro, Spolzino and Lunn, JJ., concur. [See 6 Misc 3d 1030(A), 2004 NY Slip Op 51843(U) (2004).]