38 A.D.2d 679 | N.Y. App. Div. | 1971
Order unanimously reversed, without costs, motion granted and complaint dismissed, without costs. Memorandum: Defendant appeals from a Special Term order which denied its motion to dismiss plaintiff's complaint because of plaintiff’s failure to allege that it had filed a notice of claim as required by section 50-e of the General Municipal Law in all cases founded upon tort. In our opinion plaintiff's action is founded upon tort and failure to comply with section 50-e requires that its complaint be dismissed. Buildings on which plaintiff’s advertising signs were maintained under lease with the property owner were destroyed ‘by the city when it demolished the property after making a determination upon notice to the owner that the buildings were unsafe and a threat to the public welfare. The demolition was authorized by defendant’s building code and was a proper -exercise of its police power. Any cause of action which plaintiff might have against the defendant herein under these circumstances would be an action founded upon tort as a result of defendant’s having destroyed plaintiff’s advertising signs as an incident to the demolition of the buildings to which they were attached. Defendant’s action in demolishing these buildngs may not be construed as a taking of property for public use or a deprivation of property without due process of law, but was plainly the destruction of unsafe property which constituted a threat to public welfare and as such was a proper exercise of defendant’s police power. (Mugler v. Kansas, 123 U. S. 623, 669; 11 McQuillin, Municipal Corporations [3d ed.], § 32.27, pp. 337-338.) In its demolition of the buildings defendant owed a duty to other property owners to exercise reasonable care to avoid injury to their property. Plaintiff’s right -in damages accrued when defendant negligently destroyed its signs, and its action “ to enforce such a liability [against the city is] subject, of course, to general rules of pleading in tort actions against municipalities.” (7 McQuillin, Municipal Corporations [3d ed.], § 24.561, p. 598.) (Appeal from order of Monroe Special Term denying motion to dismiss complaint in action for damages to property.) Present — Del Vecchio, J. P., Marsh, Moule, Cardamone and Henry, JJ.
