Opinion
Argued February 3, 2000
March 17, 2000
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated August 18, 1998, which granted the defendant's motion to dismiss the complaint and denied its cross motion, inter alia, for leave to file a late notice of claim.
Robert A. Scher, Great Neck, N.Y., for appellant.
Howard S. Miller, Town Attorney, Manhasset, N.Y. (Kathleen A. Burke of counsel), for respondent.
MYRIAM J. ALTMAN, J.P., WILLIAM D. FRIEDMANN, GABRIEL M. KRAUSMAN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The failure to serve a notice of claim in compliance with Town Law § 65 Town(3) compelled the dismissal of the action (see,Town Law § 65 Town[3]; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539). The plaintiff's contention that service of the verified complaint upon the Town Clerk was equivalent to the service of a verified notice of claim is unpreserved for appellate review (see, Dannhauser v. County of Suffolk, 216 A.D.2d 514, 515), and, in any event, without merit (see, Holzmacher, McClendon Murrell v. Town of E. Hampston, 204 A.D.2d 604; Schweigert v. Town of Newfane, 152 A.D.2d 995; see also, Davidson v. Bronx Municipal Hosp., 64 N.Y.2d 59, 61-62; Davis v. City of New York, 250 A.D.2d 368, 369-370).
The court properly denied the plaintiff's cross motion, inter alia, for leave to file a late notice of claim to recover damages for conversion. A cause of action alleging conversion cannot be maintained where, as here, damages are being sought merely for breach of contract, and no wrong independent of the contract claim has been demonstrated (see, Wolf v. National Council of Young Israel, 246 A.D.2d 416 [2d Dept., Aug. 9, 1999]; Priolo Communications, Inc. v. MCI Telecommunications Corp., 248 A.D.2d 453;MBL Life Assur. Corp. v. 555 Realty Co., 240 A.D.2d 375, 376-377;Peters Griffin Woodward, Inc. v. WCSC, Inc., 88 A.D.2d 883).
The plaintiff's remaining contentions are without merit.
ALTMAN, J.P., FRIEDMANN, KRAUSMAN, and FEUERSTEIN, JJ., concur.