Summary
In Damico v. Onondaga County Water Auth. (36 Misc.2d 158) it was held that the time to file a notice of claim commenced when the action accrued on the discovery of water damage to property.
Summary of this case from Sorge v. City of N.YOpinion
April 20, 1962
Costello, Cooney Fearon for defendant.
Alfonse J. Damico for plaintiffs.
The defendant has moved for an order dismissing the complaint on the ground that no written notice of claim was filed pursuant to the provisions of section 1169 Pub. Auth. of the Public Authorities Law and section 50-e Gen. Mun. of the General Municipal Law.
It is urged by the defendant that the complaint alleges that due to leakage in water pipelines under the control of the defendant during the year 1959, damage was caused to the premises of the plaintiffs but that no claim was filed with the defendant covering the damages sustained by the plaintiff until July 29, 1960. The defendant, therefore, takes the position that inasmuch as more than 90 days elapsed from the time of the alleged negligent acts of the defendant before notice of claim thereof was filed, that the provisions of section 50-e Gen. Mun. of the General Municipal Law bar a recovery.
The plaintiff, Alfonse J. Damico, in his answering affidavit, asserts that the alleged damage did not occur or at least was not discovered until May 5, 1960 and that although it is alleged in the complaint that there was a leak in the water pipes maintained by the defendant and the defendant was advised of the possibility of such leaks during 1959, that no damage was actually sustained or at least observed by the plaintiffs until May 5, 1960. It is, therefore, urged by the plaintiffs that the notice of claim served on July 29, 1960 was served within the 90-day period required by section 50-e Gen. Mun. of the General Municipal Law. Subdivision 1 of section 50-e Gen. Mun. of the General Municipal Law provides in part: "the notice shall comply with the provisions of this section and it shall be given within ninety days after the claim arises."
I am of the opinion that the plaintiffs' contention is correct, namely, that until the plaintiffs discovered that their premises had been damaged, no cause of action had accrued in their favor and no claim could have been made therefor. ( Rayworth v. City of Buffalo, 284 App. Div. 827; Meruk v. City of New York, 223 N.Y. 271.)
The defendant's motion to dismiss the complaint is denied, with $10 costs.