PALMIERI v. VILLAGE OF BABYLON

Reset A A Font size: Print

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

Paul PALMIERI, appellant, v. VILLAGE OF BABYLON, respondent.

Decided: February 21, 2006

ROBERT W. SCHMIDT, J.P., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. R. Bertil Peterson, Babylon, N.Y., for appellant. Morris Duffy Alonso & Faley, LLP, New York. N.Y. (Yolanda L. Ayala and Kenneth E. Pitcoff of counsel), for respondent.

In an action, inter alia, to recover for damage to property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated December 13, 2004, which denied his motion for leave to amend the complaint and to compel the defendant's response to his interrogatories.

ORDERED that the order is affirmed, with costs.

The plaintiff moved, inter alia, for leave to amend the complaint to increase the amount sought to be recovered for damage to property to the sum of $500,000 and to assert a claim for punitive damages in the sum of $500,000.   Since the claims for damages set forth in the amended complaint were more than merely incidental to the equitable relief sought in the original complaint, the plaintiff was required to file a timely notice of claim pursuant to General Municipal Law § 50-e (see CPLR 9801[1];  Thoma v. Town of Schodack, 6 A.D.3d 957, 776 N.Y.S.2d 109;  Andrusz v. Town of Lancaster, 289 A.D.2d 950, 735 N.Y.S.2d 438;  Robertson v. Town of Carmel, 276 A.D.2d 543, 714 N.Y.S.2d 442;  American Pen Corp. v. City of New York, 266 A.D.2d 87, 698 N.Y.S.2d 472).   The plaintiff admittedly failed to file a notice of claim and, thus, that branch of his motion which was for leave to amend the complaint was properly denied (see Martz v. Incorporated Vil. of Val. Stream, 210 A.D.2d 205, 620 N.Y.S.2d 267;  Mathison v. Zocco, 207 A.D.2d 434, 615 N.Y.S.2d 745;  Hauptman v. New York City Health & Hosps. Corp., 162 A.D.2d 588, 589, 556 N.Y.S.2d 929).

The plaintiff's remaining contention is without merit.

Copied to clipboard