Upon
the dissolution of the government of the
After their transfer to the Town police department, the three officers and the South Nyack Police Association [Plaintiffs] initiated a CPLR Article 78 naming the Village and the Village mayor and trustees as Respondents in an effort to compel the Village to compensate each officer for certain unused sick leave accruals. Respondents moved, among other things, to dismiss the proceeding or to dismiss the complaint insofar as asserted against the Village.
The Supreme Court converted the proceeding into a
plenary action and ultimately Supreme Court granted the Respondents' motion to dismiss
the complaint insofar as the Village was named a party to the Article 78 action. Plaintiffs appealed the Supreme
Court's decision.
The Appellate Division held that Supreme Court properly directed dismissal of the complaint insofar as asserted against the Village for failure to comply with the notice of claim requirements of CPLR §9802, citing Nioras v Village of Rye Brook, 74 AD3d 1036, The Appellate Division's decision notes that §9802 provides that "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued".
The
Appellate Division said that the Plaintiffs failed to file a claim with the
Village clerk and that a letter from Plaintiffs' attorney to the mayor of the
Village, "did not constitute a claim".The Appellate Division also noted that although Plaintiffs'
attorney's letter was dated prior to the dissolution of the Village, it was not
filed with the Village clerk or verified "by the claimants ..., did not
identify the claimants, and did not refer to a contract claim."
In
the words of the Appellate Division, "[Supreme Court] properly granted
that branch of the [Respondents'] motion which was to dismiss the complaint
insofar as asserted against the Village for failure to comply with notice of
claim requirements pursuant to CPLR 9802."
Click HERE to access the Appellate Division's decision posted on the Internet.