Opinion
No. CA 07-01541.
February 1, 2008.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered May 31, 2007. The order denied defendant's pre-answer motion to dismiss the complaint.
ANDREWS, PUSATERI, BRANDT, SHOEMAKER ROBERSON, P.C., LOCKPORT (ROBERT S. ROBERSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT, FOR PLAINTIFF-RESPONDENT.
Present: Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying its pre-answer motion seeking dismissal of the complaint against it. As we determined in County of Niagara v Town of Royalton ( 48 AD3d 1072), plaintiff, County of Niagara (County), was authorized by a resolution of the County Legislature to commence this action through the County Attorney, and thus Supreme Court did not err in refusing to grant defendant's motion based on the County's alleged lack of capacity to sue ( cf. County of Sullivan v Town of Thompson, 99 AD2d 574, 574-575). In addition, as we determined in our decision in County of Niagara ( 48 AD3d 1072), the six-year statute of limitations applies. In this case, defendant failed to meet its burden on the motion with respect to the third cause of action, and none of the remaining causes of action is time-barred. We have considered defendant's remaining contentions and conclude that they are lacking in merit.