| Inzerillo v Town of Huntington |
| 2009 NY Slip Op 08181 [67 AD3d 736] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Jack Inzerillo, Appellant, v Town of Huntington et al.,Respondents, et al., Defendants. |
—[*1] Bartlett McDonough Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Patricia D'Alvia, and Adonaid C. Medina of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Suffolk County (Weber, J.), dated July 23, 2008, which granted thatbranch of the motion of the defendants Town of Huntington and Frank Castellano which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them, withprejudice, for failure to comply with General Municipal Law § 50-i, and denied theplaintiff's cross motion for leave to amend the complaint, and (2), as limited by his brief, from somuch of an order of the same court dated February 4, 2009, as, upon reargument of that branchof the motion which was to dismiss the complaint insofar as asserted against the defendantsTown of Huntington and Frank Castellano, with prejudice, adhered to the determination that thedismissal be with prejudice.
Ordered that the appeal from so much of the order dated July 23, 2008, as granted thatbranch of the motion of the defendants Town of Huntington and Frank Castellano which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them, withprejudice, is dismissed, as that portion of the order was superseded by the order dated February4, 2009, made upon reargument; and it is further,
Ordered that the order dated July 23, 2008 is affirmed insofar as reviewed; and it is further,
Ordered that the order dated February 4, 2009 is reversed insofar as appealed [*2]from, on the law, and, upon reargument, so much of thedetermination in the order dated July 23, 2008, as granted that branch of the motion of thedefendants Town of Huntington and Frank Castellano which was pursuant to CPLR 3211 (a) (7)to dismiss the complaint insofar as asserted against them, with prejudice, for failure to complywith General Municipal Law § 50-i is vacated, and that branch of the motion is granted tothe extent that the complaint shall be dismissed without prejudice to the plaintiff'scommencement of a new action pursuant to CPLR 205 (a), within six months after service on theplaintiff of a copy of this decision and order, and that branch of the motion is otherwise denied;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly determined that the defendants Town of Huntington and FrankCastellano (hereinafter together the Town defendants) were entitled to dismissal of the complaintinsofar as asserted against them because the plaintiff failed to comply with General MunicipalLaw § 50-i, in that he commenced the action less than 30 days after service of his notice ofclaim. The court erred, however, in determining that the dismissal should be with prejudice.Inasmuch as the plaintiff served the notice of claim and amended notice of claim within 90 daysafter the claim arose, and commenced the action within the time prescribed by the statute oflimitations, the action was timely commenced against the Town defendants within the meaningof CPLR 205 (a) (cf. Smith v Scott, 294 AD2d 11, 22 [2002]). Consequently, thedismissal should have been without prejudice to the plaintiff's commencement of a new actionagainst the Town defendants pursuant to CPLR 205 (a) (see Smith v Scott, 294 AD2d at22; cf. Knotts v City of New York,6 AD3d 664 [2004]; Jacker v County of Suffolk, 304 AD2d 528 [2003]).
In light of its determination that the Town defendants were entitled to dismissal, withprejudice, because the plaintiff failed to comply with General Municipal Law § 50-i, theSupreme Court never decided those branches of the Town defendants' motion which were todismiss the complaint insofar as asserted against them because the plaintiff failed to comply withGeneral Municipal Law §§ 50-e and 50-h. Under the circumstances and in theinterest of judicial economy, we address those branches of the motion (see Express Shipping, Ltd. v Gold, 63AD3d 669, 671 [2009]), and determine that they are without merit.
The parties' remaining contentions are without merit. Rivera, J.P., Fisher, Belen and Austin,JJ., concur.