| Matteawan On Main, Inc. v City of Beacon |
| 2011 NY Slip Op 04431 [84 AD3d 1183] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Matteawan On Main, Inc., Appellant, v City of Beacon,Respondent. |
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In an action, inter alia, to recover money had and received, the plaintiff appeals from an orderof the Supreme Court, Dutchess County (Sproat, J.), dated May 10, 2010, which granted thatbranch of the defendant's motion which was to dismiss the amended complaint for the plaintiff'sfailure to serve a timely notice of claim.
Ordered that the order is reversed, on the law, with costs, that branch of the defendant'smotion which was to dismiss the amended complaint for the plaintiff's failure to serve a timelynotice of claim is denied, and the matter is remitted to the Supreme Court, Dutchess County, fora determination of the remaining branches of the defendant's motion to dismiss the amendedcomplaint.
The plaintiff is the owner of nonhomestead property in the City of Beacon. On October 15,2008, the Mayor of the City announced at a special meeting of the Beacon City Council that theCity's tax levy for 2008 and the 10 years prior thereto were improperly apportioned betweenhomestead and nonhomestead properties, resulting in the overpayment of taxes by nonhomesteadproperty owners. Subsequently, on June 1, 2009, the Mayor announced that the City would notrefund any tax overpayments made by nonhomestead property owners.
On or about June 12, 2009, the plaintiff served a notice of claim upon the City. On or aboutOctober 15, 2009, the plaintiff commenced the instant action seeking a refund of all taxes itoverpaid, alleging causes of action to recover money had and received, to recover damages forunjust enrichment in quasi contract, for declaratory relief, and for imposition of a constructivetrust upon the overpayments. The plaintiff also sought to certify a class pursuant to CPLR article9, consisting of all nonhomestead property owners in the City. On or about October 27, 2009, theplaintiff served an amended complaint as of right (see CPLR 3025 [a]).
In lieu of an answer, and by notice dated November 16, 2009, the City moved pursuant toCPLR 3211 to dismiss the amended complaint on the grounds that (1) the action was notcommenced within the one-year statute of limitations set forth in Beacon City Charter §9.10; (2) the plaintiff failed to serve a notice of claim upon the City within 90 days of the allegedwrongdoing in accordance with General Municipal Law § 50-e; (3) the pleadings failed tostate a cause of action; and (4) the plaintiff failed to [*2]preserveits claim by protesting the alleged overpayment of taxes.
The Supreme Court granted that branch of the motion which was to dismiss the amendedcomplaint on the ground that the notice of claim was not timely served pursuant to Beacon CityCharter § 9.10. In light of its determination, the Supreme Court did not reach theremaining branches of the City's motion.
The Supreme Court incorrectly granted that branch of the City's motion which was to dismissthe amended complaint for failure to serve a timely notice of claim upon the City because neitherthe notice of claim provision of Beacon City Charter § 9.10 relied upon by the SupremeCourt, nor the notice of claim provision of General Municipal Law § 50-e relied upon bythe City, applies to the instant case. Both of these notice of claim provisions apply to tort claims.Here, however, the plaintiff is seeking a refund of the overpayment of taxes, which is properlycharacterized as an action to recover money had and received, and sounds in quasi contract(see Finke v City of Glen Cove, 55 AD3d 785, 786 [2008]; Hoydal v City of NewYork, 154 AD2d 345 [1989]; see also Rocks & Jeans v Lakeview Auto Sales &Serv., 184 AD2d 502 [1992]; Riverdale Country School v City of New York, 13AD2d 103, 105 [1961], affd 11 NY2d 741 [1962]).
Therefore, the order must be reversed, and the matter remitted to the Supreme Court,Dutchess County, for a determination of those branches of the City's motion that were notaddressed in the order, which remain pending and undecided. Rivera, J.P., Skelos, Florio andAustin, JJ., concur.