SCARZFAVA v. CITY OF NEWBURGH (1998)

In an action, inter alia, to recover damages for injury to property, the defendant appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered August 18, 1997, which, after a nonjury trial, and upon an order of the same court dated July 15, 1997, which, inter alia, denied its motion, in effect, to dismiss the complaint based upon the plaintiff's failure to serve a timely notice of claim, is in favor of the plaintiff and against it in the principal sum of $22,742.

ORDERED that the judgment is reversed, on the law, with costs, the order dated July 15, 1997, is vacated, the motion is granted, and the complaint is dismissed.

The Supreme Court erred in denying the defendant's motion to dismiss the complaint.   The record establishes that “the happening of the event upon which the claim [was] based” (General Municipal Law § 50-i[1] ) was the City's alleged negligent failure to supervise the installation of a sewer line by the Town of Newburgh in 1988 (see, Klein v. City of Yonkers, 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865;  Johnson v. Marianetti, 202 A.D.2d 970, 609 N.Y.S.2d 494;  Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., 181 A.D.2d 871, 581 N.Y.S.2d 857;  Nebbia v. County of Monroe, 92 A.D.2d 724, 461 N.Y.S.2d 127).   When measured from the date of that occurrence, the plaintiff's service of his notice of claim was untimely (see, Nicholas v. City of New York, 130 A.D.2d 470, 515 N.Y.S.2d 53;  cf., Flanagan v. Board of Educ., Commack Union Free School Dist., 47 N.Y.2d 613, 419 N.Y.S.2d 917, 393 N.E.2d 991;  Badgett v. New York City Health and Hosps. Corp., 227 A.D.2d 127, 641 N.Y.S.2d 299).

MEMORANDUM BY THE COURT.