Opinion
May 8, 1989
Appeal from the Supreme Court, Orange County (Green, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The gravamen of the plaintiff's complaint to recover damages against the defendant for the negligent issuance and the wrongful revocation of a building permit to construct storage warehouses in a commercial service zone sounds in tort, requiring compliance with the notice of claim requirements of General Municipal Law § 50-e. The revocation of the building permit occurred on October 18, 1985, which was the date of the accrual of the causes of action, if any, pleaded in the complaint (see, Band v Town of Colonie, 36 A.D.2d 785). The plaintiff served a notice of claim on January 30, 1986, after the expiration of the 90-day statutory filing period (see, General Municipal Law § 50-e [a]).
Contrary to the plaintiff's contention on appeal, a review of the record does not warrant a finding that the defendant waived the plaintiff's noncompliance with General Municipal Law § 50-e (1) (a) (cf., Salesian Socy. v Village of Ellenville, 41 N.Y.2d 521; King v City of New York, 90 A.D.2d 714). Although the defendant's failure to specifically deny in its answer paragraph "13" of the complaint constitutes an admission of the factual allegation that a notice of claim was served on January 30, 1986 (see, CPLR 3018), the defendant's omission is not an admission of the pleaded legal conclusion that service was timely (cf., Silberstein v Presbyterian Hosp., 96 A.D.2d 1096), particularly where the answer asserts as an affirmative defense the complaint's failure to state a cause of action. Thompson, J.P., Bracken, Brown and Rubin, JJ., concur.