Opinion
2003-256 SC.
Decided November 20, 2003.
Appeal by defendant from an order of the Small Claims Part of the Justice Court, Town of Southampton, Suffolk County (D. Kooperstein, J.), entered November 15, 2002, denying its motion to dismiss the action due to plaintiff's failure to timely file and serve a notice of claim pursuant to General Municipal Law § 50-e.
Order unanimously reversed without costs and defendant's motion to dismiss the action granted.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
The requirement of filing and serving a notice of claim, as embodied in General Municipal Law § 50-e, is applicable to small claims actions brought against municipalities ( see e.g. Rogers v. Town of Babylon, NYLJ, July 12, 1989 [App Term, 9th 10th Jud Dists]; Herzing v. Town of Babylon, NYLJ, July 12, 1989 [App. Term, 9th 10th Jud Dists], see also Papastamatis v. New York City Tr. Auth., NYLJ, July 25, 2002 [App Term, 2d 11th Jud Dists]; Waheed v. Keit, NYLJ, Nov. 28, 1995 [App Term, 2d 11th Jud Dists]) since it is not procedural in nature, but is, rather, an indispensable element of the substantive cause of action ( see Jackson v. Police Dept. of City of N.Y., 119 AD2d 551; Mojica v. New York City Tr. Auth., 117 AD2d 722).
Plaintiff did not dispute the fact that he failed to file and serve a timely notice of claim. Further, he did not show that a letter which he purportedly sent to the head of defendant's highway department was sufficient to meet the requirements of the notice of claim statute. Accordingly, the court below erred in denying defendant municipality's motion to dismiss for plaintiff's failure to serve it with a notice of claim.