Copece Contracting Corp. v. Erie County

• Decision Date: 15 November 1985
• Citation: 115 A.D.2d 320,495 N.Y.S.2d 871
• Parties: COPECE CONTRACTING CORPORATION, Respondent, v. COUNTY OF ERIE, New York, Erie County Southtowns Sewage Treatment Agency, Edward McGuinness, Justyn E. Miller, Timothy J. Trost, William E. Schutt, Charles J. Alessi and Glenn H. Absolom, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 871

495 N.Y.S.2d 871

115 A.D.2d 320

COPECE CONTRACTING CORPORATION, Respondent, v. COUNTY OF ERIE, New York, Erie County Southtowns Sewage Treatment Agency, Edward McGuinness, Justyn E. Miller, Timothy J. Trost, William E. Schutt, Charles J. Alessi and Glenn H. Absolom, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Nov. 15, 1985.

Stamm, Keefe & Murray by Gregory Stamm, Williamsville, for appellants.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C. by Mark Donadio, Buffalo, for respondent.

Before HANCOCK, J.P., and CALLAHAN, DOERR, PINE and SCHNEPP, JJ.

MEMORANDUM:

We agree with Special Term that County Law § 52 does not require a filing of a notice of claim in compliance with General Municipal Law § 50-e where the claim is for breach of contract (see Gahagan Dredging Corp. v. County of Nassau, 71 Misc.2d 751, 338 N.Y.S.2d 241; Meed v. Nassau County Police Dept., 70 Misc.2d 274, 332 N.Y.S.2d 679 ). It was proper, therefore, to deny defendants' motions with respect to plaintiff's first nine causes of action. Causes of action numbers 10 through 12, ostensibly tort causes of action for malicious breach of the contract, should have been dismissed, however. If, as defendants contend, these are causes of action in tort, then compliance with County Law § 52 was required (see Matter of Phaler v. Hicks, 71 A.D.2d 820, 419 N.Y.S.2d 394; Malcuria v. Town of Seneca, 66 A.D.2d 421, 424, 414 N.Y.S.2d 401). If, as plaintiff asserts, the tenth, eleventh and twelfth causes of action are essentially based on the contract, then they must be dismissed as legally insufficient (see Charles v. Onondaga Community Coll., 69 A.D.2d 144, 418 N.Y.S.2d 718, appeal dismissed 48 N.Y.2d 650, 421 N.Y.S.2d 200, 396 N.E.2d 482; Wegman v. Dairylea Coop., 50 A.D.2d 108, 376 N.Y.S.2d 728, lv dismissed 38 N.Y.2d 918, 382 N.Y.S.2d 979, 346 N.E.2d 817). Special Term properly held that compliance with County Law § 52 was not required for the prosecution of the claims against the individual defendants in their individual capacities (see Kalpin v. Cunningham, 60 A.D.2d 997, 401 N.Y.S.2d 659), and the record reveals that there are factual issues warranting denial of summary judgment.

Order unanimously modified on the law and as modified affirmed without costs.