Tesciuba v. Koch

Appellate Division of the Supreme Court of New York

Tesciuba v. Koch

215 A.D.2d 222, 626 N.Y.S.2d 164, 1995 N.Y. App. Div. LEXIS 5036

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

DecidedMay 11, 1995

StatusPublished

Cited by2 cases

This text of 215 A.D.2d 222 (Tesciuba v. Koch) 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

Tesciuba v. Koch, 215 A.D.2d 222, 626 N.Y.S.2d 164, 1995 N.Y. App. Div. LEXIS 5036 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered March 18, 1994, which granted defendants’ motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint, unanimously affirmed, without costs.

As defendant’s prior CPLR 3211 (a) motion was expressly denied "without prejudice”, there was no bar to this subsequent motion. Given that plaintiff’s allegations against defendants concern alleged tortious actions by defendants only in their official capacities as municipal employees, and since said actions were clearly based on discretionary judgments, plaintiff was obligated to comply with the notice of claim requirements of General Municipal Law §§ 50-e, 50-i, and 50-k (1) (b), which he failed to do. Moreover, as defendants were acting in their official capacity, they are not liable for any injurious consequences of their official, discretionary action (see, Tango v Tulevech, 61 NY2d 34, 40-41).

We have considered all other claims raised by plaintiff and find them meritless. Concur—Ross, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.

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Order, Supreme Court, New York County (Walter Tolub, J.), entered March 18, 1994, which granted defendants’ motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint, unanimously affirmed, without costs.

As defendant’s prior CPLR 3211 (a) motion was expressly denied "without prejudice”, there was no bar to this subsequent motion. Given that plaintiff’s allegations against defendants concern alleged tortious actions by defendants only in their official capacities as municipal employees, and since said actions were clearly based on discretionary judgments, plaintiff was obligated to comply with the notice of claim requirements of General Municipal Law §§ 50-e, 50-i, and 50-k (1) (b), which he failed to do. Moreover, as defendants were acting in their official capacity, they are not liable for any injurious consequences of their official, discretionary action (see, Tango v Tulevech, 61 NY2d 34, 40-41).

We have considered all other claims raised by plaintiff and find them meritless. Concur—Ross, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.

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Bluebook (online)

215 A.D.2d 222, 626 N.Y.S.2d 164, 1995 N.Y. App. Div. LEXIS 5036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tesciuba-v-koch-nyappdiv-1995.

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