Opinion
Argued May 3, 1982
Decided June 8, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JAMES N. WHITE, J.
James A. Lombardo and Richard T. Horigan for appellant.
William Mycek and John J. Mycek for respondent.
Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division ( 83 A.D.2d 654; see, also, Public Improvements v Board of Educ., 56 N.Y.2d 850). Moreover, unlike Salesian Soc. v Village of Ellenville ( 41 N.Y.2d 521) where the village, neither at trial nor before the Appellate Division, ever raised the matter of the plaintiff's failure to timely serve and file a notice of claim pursuant to former section 341-b of the Village Law, here the school district promptly moved to dismiss the action for failure to file a timely notice of claim.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.