County of Niagara v. Town of Royalton

Feb 1, 2008
Versions:48 A.D.3d 1072
849 N.Y.S.2d 822

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered May 31, 2007. The order denied defendant‘s pre-answer motion to dismiss the complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order denying its pre-answer motion seeking dismissal of the complaint on the grounds that plaintiff, County of Niagara (County), lacks the capacity to sue and that the action is time-barred. Contrary to defendant‘s contention, the County was authorized by a resolution of the County Legislature to commence this action through the County Attorney and thus did not lack capacity to sue (cf. County of Sullivan v Town of Thompson, 99 AD2d 574, 574-575 [1984]). In addition, the six-year statute of limitations applies to this action because it is one for “money had and received [and thus] is one of quasi-contract or of contract implied-in-law” (Board of Educ. of Cold Spring Harbor Cent. School Dist. v Rettaliata, 78 NY2d 128, 138 [1991]; see CPLR 213 [2]; see also Strough v Jefferson County, 119 NY 212, 219-220 [1890]), and this action thus is not time-barred. We have considered defendant‘s remaining contentions and conclude that they are lacking in merit.

Present—Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.