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AMITYVILLE DEVELOPMENT CORP. v. TOWN BABYLON (10/07/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


October 7, 1968

AMITYVILLE DEVELOPMENT CORP., APPELLANT,
v.
TOWN OF BABYLON, RESPONDENT

Order of the Supreme Court, Suffolk County, dated February 20, 1968, which (1) denied plaintiff's motion to dismiss the separate defense in defendant's answer and (2) granted defendant's cross motion to dismiss the complaint, reversed, on the law, with $10 costs and disbursements; plaintiff's motion granted; and defendant's cross motion denied. No questions of fact were considered on this appeal.

Beldock, P. J., Christ, Brennan, Munder and Martuscello, JJ., concur.

In our opinion the cause of action pleaded in the complaint accrued at the earliest on April 4, 1967, when the defendant town first refused to pay for one of the items claimed (cf. Edlux Constr. Corp. v. State of New York, 252 App. Div. 373, 374-375; Rason Asphalt v. Town of Oyster Bay, 8 Misc. 2d 411, 414-415, mod. on other grounds 6 A.D.2d 810). Consequently, the filing of the notice of claim with the Town Clerk on July 12, 1967 was timely under the statute (see Town Law, ยง 65, subd. 3).

19681007

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