Opinion
October 21, 1985
Appeal from the Supreme Court, Suffolk County (Sherman, J.).
Order and judgment reversed, on the law, without costs or disbursements, and motion to dismiss the complaint granted.
Plaintiff's action must be dismissed for failure to timely serve a notice of claim (see, Matter of Oakley v Police Prop. Clerk of Nassau County, 75 A.D.2d 816).
We find no basis in the record for estopping defendants from asserting the necessity for plaintiff to serve and allege the service of a notice of claim (cf. Bender v New York City Health Hosps. Corp., 38 N.Y.2d 662). Finally, we note that the instant action was preceded by two CPLR article 78 proceedings brought by plaintiff, that both proceedings were dismissed, and that plaintiff did not appeal from the judgments in those proceedings. The first judgment (dated June 17, 1982), states that with respect to general receipt invoice No. 8100025 "petitioner has received the items he was entitled to". The items that had been held back — and which thus, implicitly, he was not entitled to — included the very items which are the subject of the present action. By not appealing from the prior judgment, plaintiff failed to challenge that determination. Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.