descrybe logo
You are viewing a free summary from Descrybe.ai. For citation checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.

J. Petrocelli Contracting, Inc. v. City of New York

Citations: 249 A.D.2d 108; 670 N.Y.S.2d 109; 1998 N.Y. App. Div. LEXIS 4062

Court: Appellate Division of the Supreme Court of the State of New York; April 16, 1998; New York; State Appellate Court

Narrative Opinion Summary

The Supreme Court of New York County, under Justice Jane Solomon, issued an order and judgment on January 8, 1997, dismissing the complaint brought by the plaintiff subcontractor against the City. The court affirmed the dismissal unanimously and without costs, agreeing that the subcontractor's claim was based in tort and related to the City’s alleged failure to enforce the procurement of a payment bond by the general contractor, as required by State Finance Law § 137. The court found that the plaintiff had failed to serve a timely notice of claim, which necessitated the dismissal of the case, referencing relevant case law (Stanford Hgts. Fire Dist. v Town of Niskayuna, 120 AD2d 878; Davidson v Bronx Mun. Hosp., 64 NY2d 59). The court deemed it unnecessary to address any additional arguments from the parties. The decision was concurred by Justices Rosenberger, J.P., Rubin, Williams, Tom, and Saxe.

Legal Issues Addressed

Claims Based in Tort Against Municipality

Application: The subcontractor's claim was dismissed as it was based in tort related to the City's alleged failure to enforce the procurement of a payment bond by the general contractor.

Reasoning: The court affirmed the dismissal unanimously and without costs, agreeing that the subcontractor's claim was based in tort and related to the City’s alleged failure to enforce the procurement of a payment bond by the general contractor, as required by State Finance Law § 137.

Requirement for Timely Notice of Claim

Application: The court dismissed the subcontractor's complaint because the plaintiff failed to serve a timely notice of claim, which is a prerequisite for maintaining an action against a municipality.

Reasoning: The court found that the plaintiff had failed to serve a timely notice of claim, which necessitated the dismissal of the case, referencing relevant case law (Stanford Hgts. Fire Dist. v Town of Niskayuna, 120 AD2d 878; Davidson v Bronx Mun. Hosp., 64 NY2d 59).