Smith v. Town of Ellisburg

Full title: WINFORD SMITH, Appellant, v. TOWN OF ELLISBURG et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 30, 1996

234 A.D.2d 938 (N.Y. App. Div. 1996)

651 N.Y.S.2d 772

Opinion

December 30, 1996.

Order unanimously affirmed without costs.

Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.

Memorandum:

Supreme Court properly concluded that the claims asserted by plaintiff were time-barred. Plaintiff did not assert an equitable claim for continuing trespass but rather sought monetary damages for a single incidence of negligence. Therefore, the contention that General Municipal Law §§ 50-e and 50-i do not apply is without merit ( cf., Baumler v Town of Newstead, 198 AD2d 777). Because plaintiff filed his notices of claim after the Statute of Limitations had expired ( see, General Municipal Law § 50-i), the court had no discretion to extend plaintiffs time to file late notices of claim ( see, General Municipal Law § 50-e; see also, Spoleta Constr. Dev. Corp. v Board of Educ., 221 AD2d 927, lv denied 87 NY2d 808). There is no evidence that defendants engaged in misconduct preventing plaintiff from timely filing his claim.

Because the complaint was properly dismissed as time-barred, we do not address the remaining issues raised by plaintiff. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Summary Judgment.)