Seabreeze Marina at Smithtown, Inc. v. Town of Smithtown

Appellate Division of the Supreme Court of New York

Seabreeze Marina at Smithtown, Inc. v. Town of Smithtown

25 A.D.2d 780, 269 N.Y.S.2d 662, 1966 N.Y. App. Div. LEXIS 4497

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

DecidedApril 18, 1966

StatusPublished

Cited by3 cases

This text of 25 A.D.2d 780 (Seabreeze Marina at Smithtown, Inc. v. Town of Smithtown) 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

Seabreeze Marina at Smithtown, Inc. v. Town of Smithtown, 25 A.D.2d 780, 269 N.Y.S.2d 662, 1966 N.Y. App. Div. LEXIS 4497 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action (1) to determine adverse claims of title to certain real property, (2) to recover damages for trespass (dredging, etc.) and (3) for injunctive and other relief, defendants Town of Smithtown and County of Suffolk appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, entered January 6, 1965, as denied their motion to dismiss the first amended complaint insofar as the motion was on the ground that said pleading failed to state a cause of action ('CPLR 3211, subd. [a], par. 7) in that it did not allege compliance with the statutory notice requirements of sections 50-e and 50-i of the General Municipal Law. On the appeal by Town of Smithtown, order, insofar as appealed from, affirmed, with $10 costs and disbursements. The town’s time to answer is extended until 20 days after entry of the order hereon. On the appeal by County of Suffolk, order, insofar as appealed from, reversed, with $10 costs and disbursements; action as against the county severed; and first amended complaint as to the county dismissed. In our opinion no statutory notice of 'claim was necessary as a prerequisite to this action as against the town (Fontana v. Town of Hempstead, 18 A D 2d 1084, affd. 13 N Y 2d 1134). The action as against the county, however, is governed by section 52 of the County Law. That section encompasses an action in equity for a continuing wrong and damages, such as is here alleged (Thomann v. City of Rochester, 256 N. Y. 165). The plaintiff may not maintain an action against the county for equitable relief and damages without compliance with sections 50-e and 50-i of the General Municipal Law (cf. Realty Assoc. v. Stoothoff, 258 App. Div. 462). We pass on the matter as it now stands and express no opinion as to plaintiff’s further remedies against the county.

Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.

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In an action (1) to determine adverse claims of title to certain real property, (2) to recover damages for trespass (dredging, etc.) and (3) for injunctive and other relief, defendants Town of Smithtown and County of Suffolk appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, entered January 6, 1965, as denied their motion to dismiss the first amended complaint insofar as the motion was on the ground that said pleading failed to state a cause of action ('CPLR 3211, subd. [a], par. 7) in that it did not allege compliance with the statutory notice requirements of sections 50-e and 50-i of the General Municipal Law. On the appeal by Town of Smithtown, order, insofar as appealed from, affirmed, with $10 costs and disbursements. The town’s time to answer is extended until 20 days after entry of the order hereon. On the appeal by County of Suffolk, order, insofar as appealed from, reversed, with $10 costs and disbursements; action as against the county severed; and first amended complaint as to the county dismissed. In our opinion no statutory notice of 'claim was necessary as a prerequisite to this action as against the town (Fontana v. Town of Hempstead, 18 A D 2d 1084, affd. 13 N Y 2d 1134). The action as against the county, however, is governed by section 52 of the County Law. That section encompasses an action in equity for a continuing wrong and damages, such as is here alleged (Thomann v. City of Rochester, 256 N. Y. 165). The plaintiff may not maintain an action against the county for equitable relief and damages without compliance with sections 50-e and 50-i of the General Municipal Law (cf. Realty Assoc. v. Stoothoff, 258 App. Div. 462). We pass on the matter as it now stands and express no opinion as to plaintiff’s further remedies against the county.

Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.

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25 A.D.2d 780, 269 N.Y.S.2d 662, 1966 N.Y. App. Div. LEXIS 4497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seabreeze-marina-at-smithtown-inc-v-town-of-smithtown-nyappdiv-1966.

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