Opinion
November 14, 1977
Appeal from the Herkimer Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Dillon, JJ.
Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant village appeals from an order denying a motion by it to dismiss the complaint for failure to state a cause of action. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) a liberal construction is applied in testing the adequacy of the pleading (see, e.g., Coutu v Otis Elevator Co., 58 A.D.2d 131). Accordingly, all of the factual allegations in the complaint must be assumed to be true (Brady Co. v Concrete Plank Co., 56 A.D.2d 591) and the pleading is deemed to allege whatever cause of action can be implied from its statement by fair and reasonable intendment (see Paul v Hogan, 56 A.D.2d 723). Where a complaint, however, sets forth a cause of action for breach of contract, the provisions of the contract upon which the claim is based must be alleged (Berdych v Bell Aerospace Corp., 19 A.D.2d 582; Crossways Apts. Corp. v Amante, 213 App. Div. 430). Here, plaintiffs assert their status as third-party beneficiaries of an agreement between defendants village and the Ilion Urban Renewal Agency and a redeveloper, Edward W. Irish, Inc. Yet they fail to allege sufficient facts from which any obligation assumed by the village may be inferred. Nor do they assert facts from which a breach of any obligation upon which their claim is based may be inferred. Therefore, the cause of action against defendant village should have been dismissed. Furthermore, plaintiffs fail to allege compliance with section 341-b of the Village Law (now CPLR 9802). That section requires the timely filing of a written verified claim as a condition precedent to maintaining an action upon or arising out of a contract against a village. Absent special circumstances, failure to allege compliance with this provision requires dismissal of the complaint (Alexander v Village of Tupper Lake, 19 A.D.2d 939; see Salesian Soc. v Village of Ellenville, 41 N.Y.2d 521; Stage v Village of Owego, 48 A.D.2d 985, affd 39 N.Y.2d 1017; but see Matter of Caruso v Incorporated Vil. of Sloatsburg, 28 A.D.2d 679). Plaintiffs assert that section 341-b has no application where an action is brought against a village incorporated under a special charter. We disagree. Plaintiffs have not shown any provision in defendant village's special charter that is inconsistent with section 341-b of the Village Law and, accordingly, that section controls here (Village Law, § 380; see Town of Cortland v Village of Peekskill, 281 N.Y. 490, 494; cf. Greene v Dunscomb, 281 N.Y. 261; Rogers v Village of Port Chester, 234 N.Y. 182; People ex rel. Goldowitz v Karnes, 260 App. Div. 110, affd 283 N.Y. 764; but see Collyer v President Trustees of Vil. of Ossining, 248 App. Div. 913). Inasmuch as the provisions of the Village Law apply and plaintiffs failed to plead and prove compliance therewith, Special Term erred in denying defendant village's motion to dismiss.