Smith v. Town of Ellisburg

Appellate Division of the Supreme Court of New York

Smith v. Town of Ellisburg

234 A.D.2d 938, 651 N.Y.S.2d 772, 1996 N.Y. App. Div. LEXIS 13665

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

DecidedDecember 30, 1996

StatusPublished

Cited by1 cases

This text of 234 A.D.2d 938 (Smith v. Town of Ellisburg) 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. Town of Ellisburg, 234 A.D.2d 938, 651 N.Y.S.2d 772, 1996 N.Y. App. Div. LEXIS 13665 (N.Y. Ct. App. 1996).

Pincite

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that the claims asserted by plaintiff were time-barred. Plaintiff did not assert an equitable claim for continuing trespass but rather sought monetary damages for a single [939]*939incidence of negligence. Therefore, the contention that General Municipal Law §§ 50-e and 50-i do not apply is without merit (cf., Baumler v Town of Newstead, 198 AD2d 777). Because plaintiff filed his notices of claim after the Statute of Limitations had expired (see, General Municipal Law § 50-i), the court had no discretion to extend plaintiff’s time to file late notices of claim (see, General Municipal Law § 50-e [5]; see also, Spoleta Constr. & Dev. Corp. v Board of Educ., 221 AD2d 927, lv denied 87 NY2d 808). There is no evidence that defendants engaged in misconduct preventing plaintiff from timely filing his claim.

Because the complaint was properly dismissed as time-barred, we do not address the remaining issues raised by plaintiff. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Balio and Davis, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that the claims asserted by plaintiff were time-barred. Plaintiff did not assert an equitable claim for continuing trespass but rather sought monetary damages for a single [939]*939incidence of negligence. Therefore, the contention that General Municipal Law §§ 50-e and 50-i do not apply is without merit (cf., Baumler v Town of Newstead, 198 AD2d 777). Because plaintiff filed his notices of claim after the Statute of Limitations had expired (see, General Municipal Law § 50-i), the court had no discretion to extend plaintiff’s time to file late notices of claim (see, General Municipal Law § 50-e [5]; see also, Spoleta Constr. & Dev. Corp. v Board of Educ., 221 AD2d 927, lv denied 87 NY2d 808). There is no evidence that defendants engaged in misconduct preventing plaintiff from timely filing his claim.

Because the complaint was properly dismissed as time-barred, we do not address the remaining issues raised by plaintiff. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Balio and Davis, JJ.

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Bluebook (online)

234 A.D.2d 938, 651 N.Y.S.2d 772, 1996 N.Y. App. Div. LEXIS 13665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-town-of-ellisburg-nyappdiv-1996.

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