Opinion
CA 04-02531.
June 10, 2005.
Appeal from an order of the Supreme Court, Livingston County (Ronald A. Cicoria, A.J.), entered July 16, 2004. The order granted the motion of defendants Town of Conesus and Keith English, Code Enforcement Officer, to dismiss the complaint against them.
JAMES P. VACCA, SR., ROCHESTER, FOR PLAINTIFF-APPELLANT.
VOLGENAU BOSSE, LLP, BUFFALO (HOLLY C. HECKER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Before: Pigott, Jr., P.J., Hurlbutt, Kehoe, Martoche and Smith, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action on April 1, 2004 against, inter alia, the Town of Conesus (Town) and Keith English, Code Enforcement Officer for the Town (defendants), to recover damages for the alleged negligent inspection and approval of improvements to plaintiff's home. The home improvements were last inspected by English on February 1, 2001. Plaintiff contends that she timely served the notice of claim on March 24, 2003, which was within 90 days after she discovered the code violations and defects. She further contends that she timely commenced the action within one year and 90 days of "the happening of the event upon which the claim is based" (General Municipal Law § 50-i [c]). We conclude, however, that Supreme Court properly granted the motion of defendants to dismiss the complaint against them pursuant to CPLR 3211 (a) (5). The time within which to serve a notice of claim and to commence the action began to run on February 1, 2001, the date that English last inspected the premises. Plaintiff thus failed to serve a notice of claim within 90 days after the claim arose and failed to commence the action within one year and 90 days "after the happening of the event upon which the claim is based" (General Municipal Law § 50-i [c]; see Klein v. City of Yonkers, 53 NY2d 1011, 1012-1013; Matter of Witt v. Town of Amherst [appeal No. 2], 17 AD3d 1030; Johnson v. Marianetti, 202 AD2d 970).