Town of Philipstown v. Garrison Contracting, Inc.

85 A.D.3d 1014, 925 N.Y.S.2d 848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2011
• Status: Published

Opinion

In an action for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated July 8, 2010, which denied its motion pursuant to CPLR 3211 to dismiss the defendant’s counterclaims.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion pursuant to CPLR 3211 to dismiss the defendant’s counterclaims is granted.

The counterclaims asserted by the defendant required, as a condition precedent, a timely served notice of claim pursuant to General Municipal Law § 50-e (see Dixon v City of New York, 76 AD3d 1043, 1044 [2010]; Kaufman v Village of Mamaroneck, 286 AD2d 666, 666-667 [2001]). Since the notice of claim was served by the defendant more than 90 days after the defendant’s claims arose, and the defendant did not seek leave to serve a late notice of claim, the Supreme Court should have granted the plaintiffs motion to dismiss the defendant’s counterclaims (see General Municipal Law § 50-e; Stoll v New York City Health & Hosps. Corp., 8 AD3d 654 [2004]; Kaufman v Village of Mamaroneck, 286 AD2d at 667; Scarzfava v City of Newburgh, 255 AD2d 436 [1998]).

In light of our determination, we need not reach the plaintiffs remaining contentions. Skelos, J.P., Belen, Lott and Cohen, JJ., concur.