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BRECO ENVIRONMENTAL CONTRACTORS, INC. v. TOWN OF SMITHTOWN

31 A.D.3d 357 (2006)

819 N.Y.S.2d 58

BRECO ENVIRONMENTAL CONTRACTORS, INC., Plaintiff, v. TOWN OF SMITHTOWN, Defendant and Third-Party Plaintiff. R.E. PUSTERINO, P.C., Third-Party Defendant. (Action No. 1.) RUTTURA & SONS CONSTRUCTION COMPANY, Plaintiff, v. BRECO ENVIRONMENTAL CONTRACTORS, INC., et al., Defendants. (Action No. 2.) TULLY ENVIRONMENTAL, INC., Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. (Action No. 3.) BRECO ENVIRONMENTAL CONTRACTORS, INC., Plaintiff, v. TOWN OF SMITHTOWN, Defendant. (Action No. 4.) DURANTE BROS. CONSTRUCTION CORP., Plaintiff, v. BRECO ENVIRONMENTAL CONTRACTORS, INC., Defendant. (Action No. 5.) BRECO ENVIRONMENTAL CONTRACTORS, INC., Respondent, v. TOWN OF SMITHTOWN, Appellant. (Action No. 6.) BRECO ENVIRONMENTAL CONTRACTORS, INC., Plaintiff, v. TOWN OF SMITHTOWN, Defendant. (Action No. 7.)

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 5, 2006.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Town of Smithtown moved pursuant to CPLR 3211 (a) (2) to dismiss the complaint in action No. 6 on the ground that the court lacked subject matter jurisdiction because the plaintiff failed to serve a properly verified notice of claim in accordance with Town Law § 65 (3). Contrary to the determination of the Supreme Court, there is a triable issue of fact as to whether the verification...

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