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Franza's Universal Scrap Metal, Inc. v. Town of Islip
Citations: 89 A.D.2d 843; 453 N.Y.S.2d 24; 1982 N.Y. App. Div. LEXIS 18001
Court: Appellate Division of the Supreme Court of the State of New York; August 2, 1982; New York; State Appellate Court
Defendant appeals an order from the Supreme Court of Suffolk County that effectively denied its cross motion to dismiss a breach of contract action due to plaintiff's failure to serve a notice of claim as required by subdivision 3 of section 65 of the Town Law, while also extending the plaintiff's time to file said notice. The appellate court reversed this portion of the order, ruling that the extension was inappropriate because the Town Law does not provide judicial authority to extend the notice filing period for contractual disputes, unlike certain provisions in the General Municipal Law for tort actions. The plaintiff had entered into a five-year contract with the defendant town for the exclusive processing and removal of recyclable solid waste. The defendant allegedly breached this contract by independently disposing of contractually covered materials starting September 24, 1980. The plaintiff commenced the action on April 21, 1981, serving only a summons without filing a notice of claim, which the defendant argued was necessary for maintaining the action. The court acknowledged that the wrong was ongoing, allowing for successive causes of action with each day of breach. Although the initial breach occurred outside the six-month notice period, the notice filed on May 8, 1981, was deemed effective for breaches occurring within the statutory period prior to its filing. Consequently, the plaintiff can pursue a new action for damages related to those breaches. The ruling emphasized the importance of adhering to notice requirements while recognizing the implications of continuous breaches in contractual relationships.