Town of Gardiner v. Republic Insurance

109 Misc. 2d 622, 440 N.Y.S.2d 818, 1981 N.Y. Misc. LEXIS 2441

Opinion

OPINION OF THE COURT

Lawrence E. Kahn, J.

This is a motion for an order pursuant to CPLR 3211 (subd [a], par 7) dismissing plaintiff’s complaint on the ground that it fails to state a cause of action. The action seeks to recover the sum of $12,000 on a performance bond posted in conjunction with a subdivision known as “Yorkshire Estates, § A-l” located in the Town of Gardiner.

The instant motion is predicated upon defendant’s allegation that the complaint fails to state a cause of action by reason that it fails to allege that the town board passed a resolution declaring the bond in question to be in default. At issue is whether subdivision 1 of section 277 of the Town Law requires the complaint to allege passage of such a resolution.

The pertinent section of the Town Law provides that in those instances where the required improvements have not been installed, “[T]he town board may thereupon declare the said performance bond to be in default and collect the sum remaining payable thereunder”. Significantly, this statutory language makes no reference to the adoption of a resolution, or the requirement that a pleading must allege the passage of such a resolution. A review of the complaint establishes that it is sufficiently particular to give the court and parties notice of the transactions intended to be proved (CPLR 3013). Further, CPLR 3026 provides that a pleading “shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.”

For the reasons hereinabove set forth, the motion shall be denied.