Kyle v. Village of Catskill

• Decision Date: 10 April 1975
• Citation: 367 N.Y.S.2d 158,81 Misc.2d 1035
• Parties: Edward C. KYLE, Plaintiff, v. VILLAGE OF CATSKILL, Defendant.
• Court: New York Supreme Court

Page 158

367 N.Y.S.2d 158

81 Misc.2d 1035

Edward C. KYLE, Plaintiff, v. VILLAGE OF CATSKILL, Defendant.

Supreme Court, Greene County.

April 10, 1975.

Burns F. Barford, Jr., Valatie, for plaintiff; Thomas J. Hadjis, Stuyvesant, of counsel.

Meadow, Ruf & Lalor, Catskill, for defendant; Maynard, O'Connor & Smith, Albany, of counsel.

MEMORANDUM

JOHN T. CASEY, Justice.

The original summons and complaint in this action dated August 1, 1972 sought to restrain and enjoin the defendant Village from improperly maintaining a catch basin on property adjoining the plaintiff's, which caused surface water to be discharged onto the plaintiff's premises with resultant damage. As a consequence, this complaint also sought to have the condition declared a nuisance and additionally demanded money damages as incidental to the prime relief.

Two notices of claim, one dated October 24, 1972 and the other November 30, 1972 (the second particularizing the first with additional information) were served by the plaintiff on or about the dates thereof, subsequent, however, to the commencement of the first action. The second notice of claim alleged that damages were sustained by the plaintiff on November 8, 14, 20 and 26th (1972) and on various occasions when storms occurred.

On the defendant's motion an order was granted on July 30, 1974 by Mr. Justice Williams dismissing the complaint for its failure to allege compliance with the provisions of Section 50 and specifically with 50--i of the General Municipal Law. No appeal was taken from this order. Rather, an amended complaint was served on August 1, 1974--more than one year and 90 days since the accrual of the claim as alleged in the notices. The new complaint differs essentially from the original only insofar as it alleges that the notices of claim were served, that the plaintiff was examined relative thereto and that the requisite time for adjustment or payment thereof had expired and such payment had been refused or neglected.

The defendant moves herein to dismiss this second complaint for its failure of compliance with General Municipal Law Section 50--i and for summary judgment, contending the action is now untimely. The defendant's motion to dismiss this second complaint must be denied as, indeed, in my opinion, the first motion should have been. Where, as here, the nature of the plaintiff's action is equitable (to enjoin a continuing wrong and to abate a nuisance), Section 50--i of the General Municipal Law requiring (a) a notice of claim under Section 50--e and (b) a lapse of 30 days from such notice has no applicability even though money damages are sought as incidental to the main relief. Fontana v. Town of Hempstead, 18 A.D.2d 1084, 239 N.Y.S.2d 512, aff'd, 13 N.Y.2d 1134, 247 N.Y.S.2d 130, 196 N.E.2d 561; Suburban Club of Larkfield, Inc. v. Town of Huntington, 57 Misc.2d 1051, 294 N.Y.S.2d 4, aff'd, 31 A.D.2d 718, 297 N.Y.S.2d 893. The defense may not even be relied upon partially, i.e., to limit the damages by denying recovery for those damages accruing prior to the 90 day period in which the claim must be filed. An effort to do so (see Grant v. Town of Kirkland, 24 Misc.2d 1087, 208 N.Y.S.2d 888) was reversed. Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594.

The question remains whether or not the time factor (requiring the...