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Foster v. City of New York

Supreme Court of New York, Second Department

December 18, 2013

Rupert Foster, also known as Stephen Foster, appellant,
v.
City of New York, et al., respondents. Index No. 22847/11

Kharl A. Foster, Brooklyn, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel; Ahson Azmat on the brief), for respondents.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered December 3, 2012, which granted the defendants' motion to dismiss the complaint on the ground that the notice of claim did not comply with General Municipal Law § 50-e(2).

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants' motion to dismiss the complaint based on his failure to allege in the notice of claim the time, including a date, when his claim against the defendants arose. Compliance with the notice of claim requirements set forth in General Municipal Law § 50-e(2) is a condition precedent to the commencement of a common-law tort action against a municipality (see Tully v City of Glen Cove, 102 A.D.3d 670, 671). The plaintiff's failure to allege with sufficient particularity the time when his claim arose frustrated the defendants' ability to conduct a meaningful investigation into his claim and to assess the merits of that claim (see Vallejo-Bayas v New York City Tr. Auth., 103 A.D.3d 881, 882; Levine v City of New York, 111 A.D.2d 785, 786).

Accordingly, the defendants' motion to dismiss the complaint was properly granted.

DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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