| Mendik v Incorporated Vil. of Lattingtown |
| 2010 NY Slip Op 06411 [76 AD3d 616] |
| August 17, 2010 |
| Appellate Division, Second Department |
| Todd Mendik et al.,Respondents-Appellants, v Incorporated Village of Lattingtown et al.,Appellants-Respondents. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Jackie L. Gross of counsel), forappellant-respondent County of Nassau. Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Joseph R. Harbeson and Edward A.Ambrosino of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for negligence, trespass, and nuisance, thedefendant Incorporated Village of Lattingtown appeals from so much of an order of the SupremeCourt, Nassau County (Mahon, J.), entered May 20, 2009, as denied that branch of its motionwhich was to dismiss the second cause of action for injunctive relief insofar as asserted against itfor failure to serve a timely notice of claim, the defendant County of Nassau separately appeals,as limited by its brief, from so much of the same order as denied that branch of its separatemotion which was to dismiss the second cause of action for injunctive relief insofar as assertedagainst it for failure to serve a timely notice of claim, and the plaintiffs cross-appeal, as limitedby their brief, from so much of the same order as granted those branches of the separate motionsof the defendants Incorporated Village of Lattingtown and County of Nassau which were todismiss the first, third, and fourth causes of action to recover damages for negligence, trespass,and nuisance, respectively, insofar as asserted against each of them for failure to serve a timelynotice of claim.
Ordered that the order is reversed insofar as appealed from, on the law, and those branchesof the separate motions of the defendants Incorporated Village of Lattingtown and County ofNassau which were to dismiss the second cause of action for injunctive relief insofar as assertedagainst each of them for failure to serve a timely notice of claim are granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiffs commenced this action against the Incorporated Village of Lattingtown andthe County of Nassau (hereinafter together the defendants) alleging that their negligentmaintenance and ownership of a drainage system caused a brick wall on the plaintiffs' propertyto collapse. The first, third, and fourth causes of action sought to recover damages fornegligence, [*2]trespass, and nuisance, respectively. The secondcause of action sought an injunction compelling the defendants to repair, fix, and restore the wallat their sole cost and obligation.
The Supreme Court properly granted those branches of the defendants' separate motionswhich were to dismiss the first, third, and fourth causes of action insofar as asserted against themfor failure to serve a timely notice of claim (see General Municipal Law § 50-e;County Law § 52; CPLR 9802). Contrary to the plaintiffs' contention, a letter sent by theplaintiff Todd Mendik to the Village's Commissioner of Highways referring to "our recentconversations over the past few days" regarding the collapse of the wall did not constitute anotice of claim (see General Municipal Law § 50-e [2]; Brown v City of NewYork, 95 NY2d 389, 393 [2000]; Crair v Brookdale Hosp. Med. Ctr., Cornell Univ.,94 NY2d 524, 531 [2000]). Also contrary to the plaintiffs' contention, the defendants did notengage in any conduct that would give rise to an estoppel (see Laroc v City of New York, 46 AD3d 760, 761 [2007]; Wade v New York City Health & Hosps.Corp., 16 AD3d 677 [2005]; Walter H. Poppe Gen. Contr. v Town of Ramapo,280 AD2d 667, 667-668 [2001]).
Further, the Supreme Court should have granted those branches of the defendants' separatemotions which were to dismiss the second cause of action for injunctive relief for failure to timeserve a notice of claim. The notice of claim requirements in both County Law § 52(see Boyle v Kelley, 42 NY2d 88, 91 [1977]; Picciano v Nassau County Civ. Serv.Commn., 290 AD2d 164, 171-172 [2001]) and CPLR 9802 (see Greco v IncorporatedVil. of Freeport, 223 AD2d 674 [1996]; Solow v Liebman, 175 AD2d 867, 869[1991]) encompass causes of action for equitable relief.
The parties' remaining contentions are without merit or need not be reached in light of ourdetermination. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur. [Prior Case History:2009 NY Slip Op 31185(U).]