Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Bayger, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Pine and Schnepp, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: We agree with Special Term that County Law § 52 does not require a filing of a notice of claim in compliance with General Municipal Law § 50-e where the claim is for breach of contract (see, Gahagan Dredging Corp. v County of Nassau, 71 Misc.2d 751; Meed v Nassau County Police Dept., 70 Misc.2d 274 [Bernard S. Meyer, J.]). It was proper, therefore, to deny defendants' motions with respect to plaintiff's first nine causes of action. Causes of action numbers 10 through 12, ostensibly tort causes of action for malicious breach of the contract, should have been dismissed, however. If, as defendants contend, these are causes of action in tort, then compliance with County Law § 52 was required (see, Matter of Phaler v Hicks, 71 A.D.2d 820; Malcuria v Town of Seneca, 66 A.D.2d 421, 424). If, as plaintiff asserts, the tenth, eleventh and twelfth causes of action are essentially based on the contract, then they must be dismissed as legally insufficient (see, Charles v Onondaga Community Coll., 69 A.D.2d 144, appeal dismissed 48 N.Y.2d 650; Wegman v Dairylea Coop., 50 A.D.2d 108, lv. dismissed 38 N.Y.2d 918). Special Term properly held that compliance with County Law § 52 was not required for the prosecution of the claims against the individual defendants in their individual capacities (see, Kalpin v Cunningham, 60 A.D.2d 997), and the record reveals that there are factual issues warranting denial of summary judgment.