Smith v. Rise East School

Appellate Division of the Supreme Court of New York

Smith v. Rise East School

120 A.D.2d 726, 502 N.Y.S.2d 780, 1986 N.Y. App. Div. LEXIS 56851

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

DecidedMay 27, 1986

StatusPublished

Cited by4 cases

This text of 120 A.D.2d 726 (Smith v. Rise East School) 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

Smith v. Rise East School, 120 A.D.2d 726, 502 N.Y.S.2d 780, 1986 N.Y. App. Div. LEXIS 56851 (N.Y. Ct. App. 1986).

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Opinion

— In an action, inter alia, to recover damages for breach of a contract of employment, the defendants appeal from so much of an order of the Supreme Court, Rockland County (Walsh, J.), dated November 20, 1984, as denied so much of their motion for summary judgment as was to dismiss the first and third causes of action asserted in the complaint.

Order affirmed insofar as appealed from, with costs.

County Law § 52, which incorporates the provisions of the General Municipal Law §§ 50-e and 50-i does not apply to actions to recover damages for breach of contract (see, e.g., Fraccola v City of Utica, 77 AD2d 161; Meed v Nassau County Police Dept., 70 Misc 2d 274). Since the plaintiffs surviving causes of action sound in contract, Special Term properly refused to dismiss those causes of action for the plaintiffs failure to serve a notice of claim. Mills v County of Monroe (59 NY2d 307, cert denied 464 US 1018), upon which the defendants rely in urging dismissal of the complaint, does not require a contrary result. The Mills decision only addressed the applicability of the notice of claim requirement to an employment discrimination action brought pursuant to State or Federal civil rights statutes. We do not believe the Court of Appeals in Mills v County of Monroe (supra) intended to construe County Law § 52 as requiring the serving of a notice of claim in actions to recover damages for breach of contract. Mollen, P. J., Thompson, Rubin and Lawrence, JJ., concur.

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— In an action, inter alia, to recover damages for breach of a contract of employment, the defendants appeal from so much of an order of the Supreme Court, Rockland County (Walsh, J.), dated November 20, 1984, as denied so much of their motion for summary judgment as was to dismiss the first and third causes of action asserted in the complaint.

Order affirmed insofar as appealed from, with costs.

County Law § 52, which incorporates the provisions of the General Municipal Law §§ 50-e and 50-i does not apply to actions to recover damages for breach of contract (see, e.g., Fraccola v City of Utica, 77 AD2d 161; Meed v Nassau County Police Dept., 70 Misc 2d 274). Since the plaintiffs surviving causes of action sound in contract, Special Term properly refused to dismiss those causes of action for the plaintiffs failure to serve a notice of claim. Mills v County of Monroe (59 NY2d 307, cert denied 464 US 1018), upon which the defendants rely in urging dismissal of the complaint, does not require a contrary result. The Mills decision only addressed the applicability of the notice of claim requirement to an employment discrimination action brought pursuant to State or Federal civil rights statutes. We do not believe the Court of Appeals in Mills v County of Monroe (supra) intended to construe County Law § 52 as requiring the serving of a notice of claim in actions to recover damages for breach of contract. Mollen, P. J., Thompson, Rubin and Lawrence, JJ., concur.

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Bluebook (online)

120 A.D.2d 726, 502 N.Y.S.2d 780, 1986 N.Y. App. Div. LEXIS 56851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rise-east-school-nyappdiv-1986.

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