Opinion
No. CA 07-01542.
February 1, 2008.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered May 31, 2007. The order denied defendant's pre-answer motion to dismiss the complaint.
ANDREWS, PUSATERI, BRANDT, SHOEMAKER ROBERSON, P.C., LOCKPORT (ROBERT S. ROBERSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT, FOR PLAINTIFF-RESPONDENT.
Present: Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying its pre-answer motion seeking dismissal of the complaint on the grounds that plaintiff, County of Niagara (County), lacks the capacity to sue and that the action is time-barred. Contrary to defendant's contention, the County was authorized by a resolution of the County Legislature to commence this action through the County Attorney and thus did not lack capacity to sue ( cf. County of Sullivan v Town of Thompson, 99 AD2d 574, 574-575 [1984]). In addition, the six-year statute of limitations applies to this action because it is one for "money had and received [and thus] is one of quasi-contract or of contract implied-in-law" ( Board of Educ. of Cold Spring Harbor Cent. School Dist. v Rettaliata, 78 NY2d 128, 138; see CPLR 213; see also Strough v Jefferson County, 119 NY 212, 219-220), and this action thus is not time-barred. We have considered defendant's remaining contentions and conclude that they are lacking in merit.