Fontana v. Town of Hempstead
| Decision Date | 08 April 1963 |
| Citation | 239 N.Y.S.2d 512,18 A.D.2d 1084 |
| Parties | Antoinette FONTANA et al., Appellants, v. TOWN OF HEMPSTEAD, Respondent, and Radory Construction Corp., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Fontana, New York City, for appellant; Thomas J. Todarelli, New York City, of counsel.
John A. Morhous, Hempstead, for respondent; Geo. B. Schneider, Hempstead, of counsel.
Before UGHETTA, Acting P. J., and CHRIST, BRENNAN, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action (a) for injunctive relief against the maintenance by defendants of a sewer pipe line installed upon property allegedly owned by the plaintiffs; (b) to compel the defendants to continue certain elevation work so as to provide proper drainage and prevent flooding of the plaintiffs' property; and (c) to recover money damages, the plaintiffs appeal from the following two orders of the Supreme Court, Nassau County: (1) an order, dated July 7, 1961, which denied their motion, made pursuant to rule 109 of the Rules of Civil Practice, to strike out as patently insufficient the defendant Town's first defense that plaintiffs failed to comply with statutory notice of claim requirements (General Municial Law, § 50-e, subd. 1; Town Law, § 67); and (2) an order, dated August 31, 1961, which denied their motion for reargument.
Order of July 7, 1961 reversed without costs, and motion granted.
Appeal from order of August 31, 1961 dismissed, without costs. An appeal does not lie from an order denying a motion for reargument; and, in view of our reversal of the original order, the appeal from the later order becomes academic in any event.
It is well established that compliance with the notice of claim requirements of section 50-e of the General Municipal Law and Section 67 of the Town Law is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief (Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594; cf. Sammons v. City of Gloversville, 175 N.Y. 346, 67 N.E. 622). Although the plaintiffs have combined a claim for treble damages for wilful injury to property with their claim for a compensatory money recovery for damages sustained in consequence of the alleged trespass, it is our opinion, upon consideration of the complaint in the light of all its allegations and its full scope and purport, that the action as a whole must...
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Orange Environment, Inc. v. County of Orange, 91 Civ. 8688(GLG).
...parties primarily seek equitable relief. See Rapf v. Suffolk County, 755 F.2d 282, 292 n. 7 (2d Cir.1985); Fontana v. Hempstead, 18 A.D.2d 1084, 239 N.Y.S.2d 512, 513 (2d Dep't 1963). Therefore, we deny defendants' motion to dismiss the Soons' state law CONCLUSION In summary, we grant defen......
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Rose v.
...of claim prior to commencing an action ( see Fontana v. Town of Hempstead, 13 N.Y.2d 1134, 247 N.Y.S.2d 130, 196 N.E.2d 561 [1964], affd.18 A.D.2d 1084, 239 N.Y.S.2d 512 [2d Dept.1963] [compliance with the notice requirements of the General Municipal Law and of Town Law § 67 was not necessa......
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McCabe v. Nassau County Medical Center
...inapplicable for at least the following reasons: The major relief originally sought was equitable, see Fontana v. Town of Hempstead, 18 A.D.2d 1084, 239 N.Y.S.2d 512 (2d Dep't 1963), aff'd, 13 N.Y.2d 1134, 247 N.Y.S. 2d 130, 196 N.E.2d 561 (1964); and defendants are estopped from making the......
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Rapf v. Suffolk County of New York, 376
...for equitable relief. Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594, 595 (4th Dept.1960); Fontana v. Town of Hempstead, 18 A.D.2d 1084, 239 N.Y.S.2d 512, 513 (2d Dept.1963). This appears to be the situation in the present case, where the thrust of the action is to obtain an inj......