| County of Niagara v Town of Royalton |
| 2008 NY Slip Op 00782 [48 AD3d 1072] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| County of Niagara, Respondent, v Town of Royalton,Appellant. |
—[*1] Claude A. Joerg, County Attorney, Lockport, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered May 31, 2007. The order denied defendant's pre-answer motion to dismiss the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying its pre-answer motion seekingdismissal of the complaint on the grounds that plaintiff, County of Niagara (County), lacks thecapacity to sue and that the action is time-barred. Contrary to defendant's contention, the Countywas authorized by a resolution of the County Legislature to commence this action through theCounty Attorney and thus did not lack capacity to sue (cf. County of Sullivan v Town ofThompson, 99 AD2d 574, 574-575 [1984]). In addition, the six-year statute of limitationsapplies to this action because it is one for "money had and received [and thus] is one ofquasi-contract or of contract implied-in-law" (Board of Educ. of Cold Spring Harbor Cent.School Dist. v Rettaliata, 78 NY2d 128, 138 [1991]; see CPLR 213 [2]; see alsoStrough v Jefferson County, 119 NY 212, 219-220 [1890]), and this action thus is nottime-barred. We have considered defendant's remaining contentions and conclude that they arelacking in merit. Present—Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.