17 BELVEDERE LLC v. CITY OF NEW YORK (2026)

DECISION & ORDER

In an action to recover damages for damage to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated July 24, 2024.  The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In September 2023, the plaintiff commenced this action to recover damages for damage to real property, alleging that the defendants improperly partially demolished the plaintiff's real property located in Brooklyn.  The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, contending, among other things, that the plaintiff failed to serve a notice of claim.  In support of the motion, the defendants submitted, inter alia, an affirmation stating that a search of the database maintained by the Office of the Comptroller of the City of New York (hereinafter the Comptroller) was conducted and the search revealed that the Comptroller was never served with a notice of claim on behalf of the plaintiff.  The plaintiff opposed the motion.  In an order dated July 24, 2024, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

A notice of claim is a condition precedent to an action or special proceeding sounding in tort against a public corporation (see General Municipal Law §§ 50–e[1][a];  50–i[1] ).  Service of a notice of claim upon the City based upon damage to real property must be served within 90 days of the action arising (see General Municipal Law §§ 50–e[1];  50–i[1] ).  If a plaintiff fails to serve the proper parties with a written notice of claim within the statutory period, the action must be dismissed (see Scantlebury v New York City Health & Hosps.  Corp., 4 NY3d 606, 613–614;  McErlean v. City of Long Beach, 230 AD3d 670, 670–671;  Townsend v. City of New York, 173 AD3d 809, 810).  Here, the evidence submitted by the defendants demonstrated that the plaintiff never served the defendants with a notice of claim (see Sosnicki v New York City Sch. Constr.  Auth., 226 AD3d 721, 723).  Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

The parties' remaining contentions are without merit.

DILLON, J.P., CHAMBERS, WAN and LOVE, JJ., concur.