Andrusz v. Town of Lancaster

Dec 21, 2001
Versions:289 A.D.2d 950
735 N.Y.S.2d 438
2001 N.Y. App. Div. LEXIS 12476

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court *951properly denied that part of defendants’ motion seeking dismissal of the complaint on the ground that the proceeding was not properly commenced and thus the court lacked jurisdiction. Although plaintiffs failed to file a petition with their order to show cause (see, CPLR 304), their verified complaint may be deemed a proper petition because it provided adequate notice of the facts upon which their claim is based and the relief requested by them (see, Matter of Guarneri v Town of Oyster Bay, 224 AD2d 695; Matter of Billone v Town of Huntington, 188 AD2d 526, 527-528). The court then properly converted the special proceeding to a declaratory judgment action (see, Matter of Laird v Town of Montezuma, 191 AD2d 986, 987). Because there has not been time for adequate discovery, the court properly refused to grant declaratory relief to either party at this time (see, Hager v Denny’s, Inc., 281 AD2d 921; Urcan v Cocarelli, 234 AD2d 537).

The court erred, however, in denying that part of defendants’ motion seeking dismissal of the complaint insofar as it seeks money damages. It is undisputed that plaintiffs did not file a notice of claim pursuant to General Municipal Law §§ 50-e and 50-i. We reject the argument of plaintiffs that their demand for money damages is merely “subordinate and incidental” to their demand for injunctive relief (Dutcher v Town of Shandaken, 97 AD2d 922, 923; see, Robertson v Town of Carmel, 276 AD2d 543, 544; American Pen Corp. v City of New York, 266 AD2d 87; Serkil, L. L. C. v City of Troy, 259 AD2d 920, 921, lv denied 93 NY2d 811). We therefore modify the order by granting defendants’ motion in part and dismissing the complaint insofar as it seeks money damages (see, Robertson v Town of Carmel, supra, at 544; American Pen Corp. v City of New York, supra, at 88). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.