Strauss v. City of Glens Falls

LYNCH, J.

Joseph Strauss, Glens Falls, appellant pro se.

Newell & Klingebiel, Glens Falls (David C. Klingebiel of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

LYNCH, J.

Appeal from an order of the County Court of Warren County (Hall Jr., J.),

entered May 8, 2014, which affirmed a judgment of the City Court of the City of Glens Falls in favor of defendant.

Plaintiff entered into a written agreement with defendant to provide an easement over his property in connection with a municipal sewer project. A dispute between the parties arose in

2012 when plaintiff's property was damaged during the course of the project. The parties attempted to resolve the dispute, but negotiations terminated on July 17, 2013. Thereafter, on October 10, 2013, plaintiff sent a pro se letter to defendant advising of his intention to file a lawsuit, and he filed an application for a small claims action against defendant in the City Court of the City of Glens Falls. In proceedings before the court, defendant objected that plaintiff had not filed a timely notice of claim in accordance with the requirements of General Municipal Law § 50–e and Charter of the City of Glens Falls § 10.14.5. City Court agreed and dismissed the action. County Court upheld the dismissal and plaintiff now appeals.

General Municipal Law § 50–e(1)(a) provides that a party seeking to bring a tort action against a municipality must file a notice of claim within 90 days of the date that the claim arises (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ). A similar provision is contained in Charter of the City of Glens Falls § 10.14.5. The notice of claim provisions of General Municipal Law § 50–e, however, apply only to actions sounding in tort, not to those premised upon breach of contract (see Finkle v. City of Glen Cove, 55 A.D.3d 785, 786, 866 N.Y.S.2d 317 [2008] ; Hoydal v. City of New York, 154 A.D.2d 345, 346, 545 N.Y.S.2d 823 [1989] ; Stanford Heights Fire Dist. v. Town of Niskayuna, 120 A.D.2d 878, 879, 502 N.Y.S.2d 548 [1986] ). The same is true of City of Glens Falls City Charter § 10.14.5, as its terms make clear. Here, plaintiff's small claims action is premised upon defendant's alleged failure to comply with the provisions of the easement agreement resulting in damage to his property in the amount of $5,000. Inasmuch as plaintiff's action sounds in breach of contract, not tort, the notice of claim provisions of General Municipal Law § 50–e and Charter of the City of Glens Falls § 10.14.5 are inapplicable. Therefore, plaintiff's action should not have been dismissed due to the untimely filing of a notice of claim. In view of our disposition, we need not address plaintiff's remaining claims.

ORDERED that the order is reversed, on the law, with costs, and matter remitted to the County Court of Warren County for further proceedings not inconsistent with this Court's decision.

GARRY, J.P., EGAN JR., DEVINE and MULVEY, JJ., concur.