Solow v. Liebman

Appellate Division of the Supreme Court of the State of New York

Mar 14, 1994

Versions:202 A.D.2d 493

609 N.Y.S.2d 58

1994 N.Y. App. Div. LEXIS 2475

—In an action, inter alia, to permanently enjoin the defendant from committing a nuisance, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated May 27, 1991, which, inter alia, denied his motion (1) to add the Incorporated Village of East Hampton as a defendant to this action, and (2) for leave to serve a supplemental summons and amended complaint against it.

Ordered that the order is affirmed, with costs.

Pursuant to the mandate of CPLR 9802, the plaintiff was required to serve a notice of claim upon the Village of East Hampton in compliance with General Municipal Law § 50-e, i.e., within 90 days of the accrual of the cause of action (see, Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678; Solow v Liebman, 175 AD2d 867). The plaintiff’s attempt to circumvent this requirement by alleging that the claims asserted in the proposed amended complaint against the Village arise from a "continuing wrong”, i.e., the wrongful issuance to the defendant, a neighboring landowner, of a building permit and certificate of occupancy, are unavailing. A cause of action involving the wrongful issuance of a building permit accrues when the permit is issued (see, Curtis Case v City of Port Jervis, 150 AD2d 421), and does not constitute a continuing wrong (see, Bloomfield Bldg. Wreckers v City of Troy, 50 AD2d 673, affd 41 NY2d 1102; Matter of Waterside Assocs. v New York State Dept. of Envtl. Conservation, 127 AD2d 663, affd 72 NY2d 1009; Pekar v Town of Veteran, 65 AD2d 651; Band v Town of Colonie, 36 AD2d 785). Accordingly, the Supreme Court properly concluded that the plaintiff’s failure to serve a timely notice of claim required rejection of the "legally insufficient” proposed amended complaint (see, Matter of Consolidated Edison Co. [Neptune Assocs.], 143 AD2d 1012).

In light of our determination, we do not address the parties’ remaining contentions. Sullivan, J. P., Miller, O’Brien and Krausman, JJ., concur.