Malloy v. Town of Niskayuna, Schenectady County

• Decision Date: 12 November 1970
• Citation: 315 N.Y.S.2d 502,64 Misc.2d 676
• Parties: Katherine MALLOY and William S. Malloy, Plaintiffs, v. TOWN OF NISKAYUNA, SCHENECTADY COUNTY, New York, Defendant.
• Court: New York Supreme Court

Page 502

315 N.Y.S.2d 502

64 Misc.2d 676

Katherine MALLOY and William S. Malloy, Plaintiffs, v. TOWN OF NISKAYUNA, SCHENECTADY COUNTY, New York, Defendant.

Supreme Court, Special Term, Schenectady County.

Nov. 12, 1970.

Gerald T. Hennessy, Schenectady, for plaintiffs.

Mullarkey, Horigan & Harrigan, Amsterdam, for defendant.

JOHN J. O'BRIEN, Justice.

Defendant moves to dismiss the complaint on the ground that it was not served within the time period specified by Section 50--i of the General Municipal Law and on the further ground that compliance with the statute is not pleaded in the complaint. Plaintiffs seek permission to serve an amended complaint containing the proper allegations of statutory compliance.

A notice of claim was served on the defendant Town on September 12, 1966. The summons and complaint were served on December 11, 1967. The complaint contains three causes of action all of which stem from the alleged acts of defendant in permitting certain septic systems located on private property near plaintiffs' real property to be maintained in a defective condition in violation of Town ordinances, rules and regulations. This allegedly resulted in sewage materials flowing into the public street near plaintiffs' residence. The first cause of action is for money damages for property damage occurring between April 11, 1966 and July 28, 1966 and subsequent thereto. The second cause of action is for money damages for personal injuries sustained on June 18 1966. The third cause of action is in nuisance. The nuisance condition is alleged to have continued uncorrected up to and beyond July 18, 1966.

Section 50--i General Municipal Law provides in substance that no action shall be prosecuted against a Town for personal injury or damage to real property by reason of the negligence of the Town unless it shall appear by and as an allegation in the complaint that at least thirty days have elapsed since the service of a notice of claim and that adjustment or payment has been neglected or refused. The Section further provides that an action against the Town shall be commenced within one year and ninety days after the happening of the event upon which the claim is based. Upon oral argument of the motion, plaintiffs conceded that the summons and complaint were not served within one year and ninety days from the occurrence of the personal injury as alleged in the second cause of action in the complaint and that cause of action is now dismissed with the consent of the plaintiffs. Plaintiffs urge, however, that the first and third causes of action should not be dismissed because they are based on continuing wrongs.

Section 67 of the Town Law provides in part as follows:

1. Any claim including a claim specified in section sixty-five-a of this chapter which may be made against the town or town superintendent of highways for damages for wrong or injury to person or property or for the death of a person, shall be made and served in compliance with section fifty-e of the general municipal law.

2. Every action upon such claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law.

In construing this section it has been held that in an action against a Town to enjoin a nuisance and where the complaint also asks for money damages, it is not necessary for plaintiff to comply with the notice of claim requirement prescribed by Section 50--e General Municipal Law. (Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594). This is true even if the complaint asks for treble or punitive damages in a cause of action stated separately from the cause of action for injunctive relief. (Fontana v. Town of Hempstead, 18 A.D.2d 1084, 239 N.Y.S.2d 512; also see Suburban Club of Larkfield v. Town of Huntington, 57 Misc.2d 1051 at p. 1059, 294 N.Y.S.2d 4 at pp. 11--12).

Defendant in the instant case relies to some extent upon the case of Schenker v. Village of Liberty, 261 A.D. 54, 24 N.Y.S.2d 511, aff'd 289 N.Y. 788, 47 N.E.2d 47. The holding in the Schenker case, however, was based on an interpretation of Section 341--b of the Village Law as that statute then read. The Appellate Division in the Schenker case (supra, p. 55, 24 N.Y.S.2d p. 512) stressed the fact that Section 341--b Village Law then contained the words 'no other action shall be maintained against the village unless the same shall be commenced within one year after the cause of action therefor shall have accrued * * *'. This wording is different from the wording of Section 67 of the Town Law and I feel that Schenker is neither controlling nor applicable in the instant case. In each instance, the Court must look to the underlying statute to determine if the notice requirement of Section 50--e General Municipal Law must be complied with. This point was well stated in the case of Meinken v. County of Nassau, 14 Misc.2d 304 at p. 305, 178 N.Y.S.2d 529 at p. 530 where the Court said:

'The seeming inconsistency of the cases cited on both sides of this question is more illusory than real. Actually they agree on the proposition that unless the statute is so broad in its terms as to necessarily cover all types of claims, whether incidental to an equitable action for an injunction or not, then it shall not be construed so as to enlarge its...