Schiff v. County of Sullivan

166 A.D.2d 740, 561 N.Y.S.2d 611, 1990 N.Y. App. Div. LEXIS 11605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1990
• Status: Published

Opinion

Appeal from an order of the Supreme Court (Williams, J.), entered March 10, 1989 in Sullivan County, which, inter alia, dismissed the complaint.

Supreme Court properly exercised its discretion in denying plaintiffs’ motion to be relieved of their default in opposing defendants’ prior motions for summary judgment (see, CPLR 5015 [a] [1]) because of plaintiffs’ failure to demonstrate a meritorious cause of action (see, Wilcox v Parkland Dev. Corp., 157 AD2d 998; Lyons v New York R. T. Corp., 260 App Div 938). The cause of action asserted against defendant New York State Employees’ Retirement System lacks merit because a public employee’s benefit rights accrue when the employee becomes a member of the retirement system and not with- the commencement of employment (see, Goodman v Regan, 151 AD2d 958, 960). The cause of action against defendant County of Sullivan, sounding in tort, is barred by plaintiffs’ failure to file a notice of claim pursuant to County Law § 52.

Order affirmed, with one bill of costs. Casey, J. P., Weiss, Levine, Mercure and Harvey, JJ., concur.