Francis v. Posa
| Decision Date | 30 September 2005 |
| Docket Number | CA 04-03081. |
| Citation | 21 A.D.3d 1335,801 N.Y.S.2d 857,2005 NY Slip Op 07109 |
| Parties | VINCENT J. FRANCIS, Appellant, v. ANTHONY POSA et al., Defendants, and TOWN OF PORTER et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered September 23, 2004. The order granted the motion of defendants Town of Porter and Town of Porter Building Inspector, William Smith, individually and in his official capacity, to dismiss the complaint against them.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Plaintiff commenced this action against, inter alia, the Town of Porter and the Town of Porter Building Inspector William Smith, individually and in his official capacity (collectively, defendants), alleging that they "negligently issued a certificate of occupancy" and that plaintiff reasonably relied on that certificate in purchasing a residence. The certificate of occupancy was issued on August 15, 2001, and plaintiff commenced this action in July 2004. Contrary to plaintiff's contention, the issuance of the certificate of occupancy is the event from which the claim against defendants arose (see e.g. Klein v. City of Yonkers, 73 AD2d 931 [1980], affd 53 NY2d 1011 [1981]; Matter of Witt v. Town of Amherst [appeal No. 2], 17 AD3d 1030 [2005]; Rosenbaum v. Boulder Ridge Homeowners Assn., 276 AD2d 615, 616 [2000]). Inasmuch as the action was not commenced within one year and 90 days after the claim arose (see General Municipal Law § 50-i [1]), the action was untimely, and Supreme Court properly granted that part of defendants' motion to dismiss the complaint against the Town of Porter and Smith, in his official capacity (see generally Pierson v. City of New York, 56 NY2d 950, 954 [1982]). Even assuming, arguendo, that plaintiff's damages have continued, we conclude that the statute of limitations is not thereby extended where, as here, "the act itself [did not] continue" (Sniper v. City of Syracuse, 139 AD2d 93, 95 [1988]; see Witt, 17 AD3d at 1031). We reject the contention of plaintiff that defendants are estopped from relying on the statute of limitations because their misrepresentations caused his delay in commencing the action. None of the alleged misrepresentations was made within the one-year and 90-day limitations period and thus cannot be deemed to have caused plaintiff's delay in commencing the action (see generally Simcuski v. Saeli, 44 NY2d 442, 449 [1978]).
Contrary to the further contention of plaintiff, the court properly dismissed the complaint against Smith in his individual...
To continue reading
Request your trial
-
Manon v. Pons
...), or the claims otherwise "relate to actions taken within the scope of [the officers'] official duties." Francis v. Posa, 21 A.D.3d 1335, 1336, 801 N.Y.S.2d 857 (4th Dep't 2005) ; see also Cardiff v. Carrier, 79 A.D.3d 1626, 1627, 913 N.Y.S.2d 618 (4th Dep't 2010) ; Sandpebble Builders, 90......
-
Royal Daycare Ctr., LLC v. PB 2180 Pitkin Ave, LLC, 2018–10127, 2018–14805
...53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865 ; Cardiff v. Carrier, 79 A.D.3d 1626, 1626, 913 N.Y.S.2d 618 ; Francis v. Posa, 21 A.D.3d 1335, 1336, 801 N.Y.S.2d 857 ; Merritt v. Hooshang Constr., 216 A.D.2d 542, 543, 628 N.Y.S.2d 792 ), long before the instant motion was made in 2018. Mo......
-
Cardiff v. Carrier
...it is undisputed that plaintiffs failed to commence their actions within one year and 90 days after their claims arose ( Francis v. Posa, 21 A.D.3d 1335, 1336, 801 N.Y.S.2d 857). "[C]ourts have uniformly concluded that the limitation period begins to run upon the happening of the event, irr......
-
Bd. of Managers, Fairview at Artist Lake, Condo. I v. Fairview at Artist Lake
...685, affd. 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865; Doyle v. 800, Inc., 72 A.D.2d 761, 421 N.Y.S.2d 379; Francis v. Posa, 21 A.D.3d 1335, 801 N.Y.S.2d 857). In opposition, the plaintiff failed to raise a triable issue of fact. The parties' remaining contentions are without merit or......