FRANCIS v. Town of Porter and Town of Porter Building Inspector, William Smith, Individually and in his Official Capacity, Defendants-Respondents.

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Supreme Court, Appellate Division, Fourth Department, New York.

Vincent J. FRANCIS, Plaintiff-Appellant, v. Anthony POSA, et al., Defendants, Town of Porter and Town of Porter Building Inspector, William Smith, Individually and in his Official Capacity, Defendants-Respondents.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, MARTOCHE, PINE, AND LAWTON, JJ. Vincent J. Francis, Plaintiff-Appellant Pro Se. Hurwitz & Fine, P.C., Buffalo (Philip M. Gulisano of Counsel), for Defendants-Respondents.

 Plaintiff commenced this action against, inter alia, the Town of Porter and the Town of Porter Building Inspector, William Smith, individually and in his official capacity (collectively, defendants), alleging that they “negligently issued a certificate of occupancy” and that plaintiff reasonably relied on that certificate in purchasing a residence.   The certificate of occupancy was issued on August 15, 2001, and plaintiff commenced this action in July 2004.   Contrary to plaintiff's contention, the issuance of the certificate of occupancy is the event from which the claim against defendants arose (see e.g. Klein v. City of Yonkers, 73 A.D.2d 931, 423 N.Y.S.2d 685, affd. 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865;  Matter of Witt v. Town of Amherst [Appeal No. 2], 17 A.D.3d 1030, 794 N.Y.S.2d 187;  Rosenbaum v. Boulder Ridge Homeowners Assoc., 276 A.D.2d 615, 616, 715 N.Y.S.2d 318).   Inasmuch as the action was not commenced within one year and 90 days after the claim arose (see General Municipal Law § 50-i [1] ), the action was untimely, and Supreme Court properly granted that part of defendants' motion to dismiss the complaint against the Town of Porter and Smith, in his official capacity (see generally Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331).   Even assuming, arguendo, that plaintiff's damages have continued, we conclude that the statute of limitations is not thereby extended where, as here, “the act itself [did not] continue” (Sniper v. City of Syracuse, 139 A.D.2d 93, 95, 530 N.Y.S.2d 374;  see Witt, 17 A.D.3d at 1031, 794 N.Y.S.2d 187).   We reject the contention of plaintiff that defendants are estopped from relying on the statute of limitations because their misrepresentations caused his delay in commencing the action.   None of the alleged misrepresentations was made within the one-year and 90-day limitations period and thus cannot be deemed to have caused plaintiff's delay in commencing the action (see generally Simcuski v. Saeli, 44 N.Y.2d 442, 449, 406 N.Y.S.2d 259, 377 N.E.2d 713).

 Contrary to the further contention of plaintiff, the court properly dismissed the complaint against Smith in his individual capacity as well, inasmuch as all of the allegations against him relate to actions taken within the scope of his official duties (see generally Tango v. Tulevech, 61 N.Y.2d 34, 41-42, 471 N.Y.S.2d 73, 459 N.E.2d 182;  Teddy's Drive In v. Cohen, 47 N.Y.2d 79, 82, 416 N.Y.S.2d 782, 390 N.E.2d 290).

We have reviewed plaintiff's remaining contentions and conclude that they are improperly raised for the first time in plaintiff's reply brief (see Turner v. Canale, 15 A.D.3d 960, 790 N.Y.S.2d 347), involve material dehors the record (see 10 Park Sq. Assoc. v. The Travelers [Appeal No. 2], 288 A.D.2d 828, 829, 732 N.Y.S.2d 305), or lack merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: