| McCulloch v Town of Milan |
| 2010 NY Slip Op 05371 [74 AD3d 1034] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Carmen Otero McCulloch, Appellant, v Town of Milan etal., Respondents. |
—[*1] Rice & Amon, LLP, Suffern, N.Y. (Terry Rice of counsel), for respondents Town of Milan,Town of Milan Town Board, Ross Williams, Town Supervisor, John V. Talmadge, former TownSupervisor, Alfred Lo Brutto, Pauline Combe-Clark, and Diane May, councilpersons, Town ofMilan Planning Board, Alfred Lo Brutto, chairman, Lauren Kingman, former chairman, andmembers Jeffrey Anagos, Peter Goss, May Ann Hoffman, Pauline Combe-Clark, and LaurenKingman. Hiscock & Barclay, LLP, Albany, N.Y. (Charles Z. Feldman of counsel), for respondent VanDeWater &Van DeWater, LLP. Warren S. Replansky, Pine Plains, N.Y., for respondents Paggi, Martin & Del Bene, LLC,and Greenplan, Inc.
In an action, inter alia, for a judgment declaring that a conservation easement agreemententered into by the plaintiff and the defendant Town of Milan permits the cutting of trees locatedon the plaintiff's property under certain circumstances, and to recover damages for breach ofcontract, breach of trust, and conversion, the plaintiff appeals from an order of the SupremeCourt, Dutchess County (Dolan, J.), dated April 9, 2009, which granted the motion of thedefendant Van DeWater & Van DeWater, LLP, the cross motion of the defendants Town ofMilan, Town of Milan Town Board, Ross Williams, John V. Talmadge, Alfred Lo Brutto,Pauline Combe-Clark, Diane May, the Town of Milan Planning Board, Lauren Kingman, JeffreyAnagos, Peter Goss, and Mary Ann Hoffman, and the separate cross motion of the defendantsPaggi, Martin & Del Bene, LLC, and Greenplan, Inc., to dismiss the amended complaint insofaras asserted against each of them pursuant to CPLR 3211, and denied her cross motion, amongother things, for summary judgment declaring that a conservation easement agreement sheentered into with the Town of Milan permits the cutting of trees located on her property undercertain circumstances, and for leave to file a late notice of claim.
Ordered that the order is affirmed, with one bill of costs to the respondents appearingseparately and filing separate briefs.
The Supreme Court properly dismissed the amended complaint insofar as asserted against[*2]the Town of Milan, the Town of Milan Town Board, andseveral individual Town officials (hereinafter collectively the Town defendants). Town Law§ 65 (3) provides that no action shall be maintained against a town "upon or arising out ofa contract entered into by the town unless . . . a written verified claim shall havebeen filed with the town clerk within six months after the cause of action shall have accrued."The filing of a notice of claim is thus a condition precedent to the maintenance of an actionagainst a town arising out of the contractual relationship between a plaintiff and a town (see Mohl v Town of Riverhead, 62AD3d 969 [2009]; Trager v Town of Clifton Park, 303 AD2d 875, 876 [2003];County of Rockland v Town of Orangetown, 189 AD2d 1058, 1059 [1993]).
Here, all of the causes of action asserted against the Town defendants in the amendedcomplaint, including those seeking declaratory and injunctive relief, essentially arise out of twocontracts between the plaintiff and the Town: an escrow fund agreement executed on May 5,2004, and a conservation easement agreement executed on June 29, 2006. Accordingly, the filingof a notice of claim pursuant to Town Law § 65 (3) was a condition precedent to themaintenance of this action against the Town defendants (see Trager v Town of CliftonPark, 303 AD2d 875, 876 [2003]), and the plaintiff's undisputed failure to file a timelywritten notice of claim bars this action against the Town defendants. We note that the notice ofclaim requirement also applies to the cause of action seeking return of the money which she paidinto an escrow fund pursuant to the May 2004 agreement on the quasi contractual theory ofmoney had and received. Since the plaintiff's payments into the escrow fund were made pursuantto an express agreement, this cause of action must be determined on a breach of contract theory(see Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 5[1976]; Lancaster Towers Assoc. v Assessor of Town of Lancaster, 259 AD2d 1001,1002 [1999]).
Although the plaintiff cross-moved, inter alia, for leave to file a late notice of claim, "[i]ncontrast to other notice statutes, Town Law § 65 (3) contains no provision allowing thecourt to excuse noncompliance with its requirements" (ADC Contr. & Constr., Inc. v Town of Southampton, 45 AD3d614, 615 [2007]; see Mohl v Townof Riverhead, 62 AD3d 969, 970 [2009]). Thus, the Supreme Court is without authorityto grant leave to file a late notice of claim pursuant to Town Law § 65 (3).
Furthermore, the Supreme Court properly granted the motion of the defendant Van DeWater& Van DeWater, LLP (hereinafter Van DeWater), and the cross motion of the defendants Paggi,Martin & Del Bene, LLC (hereinafter PMD), and Greenplan, Inc. (hereinafter Greenplan), todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). Theamended complaint seeks to recover, from the escrow fund, the fees which the Town paid to VanDeWater, PMD, and Greenplan for their professional services, since the escrow fund wasestablished to defray the cost of hiring consultants to evaluate the plaintiff's subdivisionapplication. Accepting the facts alleged in the amended complaint as true, and according theplaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83,87-88 [1994]; Kats v East 13th St.Tifereth Place, LLC, 73 AD3d 706 [2010]; Castaldi v 39 Winfield Assoc., 30 AD3d 458 [2006]), the amendedcomplaint fails to state a cause of action to recover the consultants' fees under the theories ofmoney had and received (see Matter of Cromwell Towers Redevelopment Co. v City ofYonkers, 41 NY2d at 5; Lancaster Towers Assoc. v Assessor of Town of Lancaster,259 AD2d at 1002), replevin (seeMcGough v Leslie, 65 AD3d 895, 896 [2009]; Batsidis v Batsidis, 9 AD3d 342 [2004]; Matter of Peters v Sotheby's Inc., 34AD3d 29, 34 [2006]), or conversion (see Batsidis v Batsidis, 9 AD3d at 343;Meese v Miller, 79 AD2d 237, 242-243 [1981]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Florio, Miller and Eng,JJ., concur.