Casazza v City of NY Dept. of Design & Constr.
Annotate this CaseDecided on July 15, 2005
Civil Court of the City of New York, Richmond County
Florence M. Casazza, Plaintiff
against
The City of New York Department Of Design and Construction and CRUZ CONSTRUCTION, Defendants
37350/04
APPEARANCES
Attorney for Plaintiff:Marc E. Scoller, Esquire
1031 Victory Boulevard
Staten Island, New York 10301
(718) 720-4505
Attorneys For DefendantMichael A. Cardozo, Esquire
The City Of New YorkBradley Braut, Esquire Of Counsel
100 Church Street
New York, New York 10007
Attorney For Defendant Cruz Construction:Jeffrey S. Shein & Associates
575 Underhill Boulevard
Syosset, New York 11791
(516) 922-6626
Catherine M. DiDomenico, J.
Plaintiff Florence M. Casazza seeks recovery against both New York City Department of Design and Construction ("DDC"), and Cruz Construction Corp., sued here as Cruz Construction ("Cruz"), for damage allegedly sustained to her home located at 893 Edgegrove Avenue, Staten Island on or about February 14, 2003. Specifically, plaintiff claims that her home sustained multiple cracks on the interior and exterior during a sewer project performed by defendant Cruz.
On or about August 5, 2004, a Summons with Endorsed Complaint was served on defendant Cruz. On or about July 29, 2004, a Summons with Endorsed Complaint was served on defendant DDC.
Cruz served its answer, and cross-complaint against DDC, for indemnity and/or [*2]contribution on February 16, 2005. The City of New York ("City"), sued here as DDC, served its verified answer on March 28, 2005 and raised, among other defenses, lack of personal jurisdiction and statute of limitations and asserted a cross-claim against Defendant Cruz.
By Notice of Motion dated April 28, 2005, the City moved to dismiss the Complaint pursuant to CPLR §3211, or in the alternative, for summary judgment, pursuant to CPLR §3212, on statute of limitations grounds and for lack of personal jurisdiction. Plaintiff cross-moved for an Order tolling the statute of limitations and/or extending the time to serve the City nunc pro tunc.
The City contends that the service upon the DDC on July 29, 2004 was defective because the City itself was not named in this action, and DDC is not a separate legal entity. (See NYC Charter, Chapter 17 §396 requiring that all actions be brought in the name of the city of New York and not in that of any agency). Furthermore, the City argues that service was not made upon the City, but upon DDC, in contravention of CPLR §311(a)(2) which requires that service be made upon the City of New York by delivery "to the corporation counsel or to any person designated to receive process in a writing filed in the
office of the clerk of New York county".
Plaintiff contends, however, that the City waived its right to assert "personal jurisdictional defenses" in a March 24, 2005 stipulation that extended the City's time to answer until April 8, 2005 (the "Stipulation"). The City denies that it ever agreed to waive its personal jurisdiction defenses and alleges that the waiver language was inserted by plaintiff's counsel after the original typed version was signed by the City and faxed to plaintiff's counsel. Plaintiff's counsel admits that this language was added by him but claims that the stipulation as faxed failed to contain the agreed language.
The Court first considers the statute of limitations defense because, if properly interposed, this defense would bar this action. See Pierson v City of New York, 56 NY2d 950, 955 (1982); Ortiz v City of New York, 28 AD2d 1098 (1st Dept 1967); Pleasant Ridge Townhouses Homeowners' Ass'n., Inc. v T & D Construction Corp., 181 AD2d 871 (2d Dept 1992). Moreover, there is no allegation that the City ever agreed to waive its statute of limitation defense.
The parties do not dispute that General Municipal Law §50-i governs this action.
General Municipal Law§ 50-i provides, in relevant part, as follows:
No action or special proceeding shall be prosecuted or maintained against a city...unless (a) a notice of claim shall have been made and served upon the city ...,(c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based;....".
CPLR §3018 requires that a party plead all matters which would be "likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a [*3]prior pleading such as ... statute of limitation.". The one year and ninety day period set forth in Gen. Municipal Law § 50-i is a statute of limitations that must be raised on a motion to dismiss or as an affirmative defense. See Eagle Ins. Co. v City of New York, 120 Misc 2d 188 (Civ Ct, Kings County 1983).
Although Plaintiff claims that the City's statute of limitations defense was not timely interposed by the City, and not otherwise sufficiently pled in its Answer, the Court finds that the City properly pled this defense in its Answer. Paragraph 9 of the Answer states, "[T]he action on behalf of plaintiff(s) is barred by reason that it was not commenced within the time provided by the statute of limitations". This is sufficiently clear to put plaintiff on notice as to the nature of this defense.
Commissioners of State Ins. Fund v Photocircuits Corp., 2 Misc 3d 300, (Sup Ct, New York County, 2003), revd on other grounds, 2005 NY Slip Op 04697 (1st Dept 2005), relied on by plaintiff, does not dictate a contrary result. In that case, the Court found that the affirmative defenses of laches and bad faith, both asserted without factual basis, were insufficiently pled. However, by their very nature, these defenses warrant more specific pleading because the facts upon which they are based likely rest with the defendant, and may be unknown to plaintiff. See also Bentivegna v Meenan Oil Co., Inc., 126 AD2d 506 (2d Dept 1987) (documentary evidence, waiver, estoppel and accord and satisfaction defenses insufficiently pled).
Here, however, the City's statute of limitations defense is premised upon the
plaintiff's own evidence, namely the earliest date plaintiff attempted to effect service of her Summons and Endorsed Complaint in this case, and the one year and ninety day period set forth in General Municipal Law §50-i. Clearly, plaintiff can be charged with knowledge of when she first attempted to make service of her own pleading and the expiration of the limitations period applicable thereto. Accordingly, the Court finds that the affirmative defense of statute of limitations was adequately pled.
It is undisputed that plaintiff's first attempt at service of the Summons and Endorsed Complaint was on July 29, 2004.[FN1] In the New York City Civil Court, commencement is marked by the service of the summons. See NYC Civil Court Act §400; Seigel, NY Practice § 63, at 90 [4th ed]. Commencement of an action stops the running of the statute of limitations. As plaintiff alleges that she sustained property damage to her home on February 14, 2003, the one year and ninety day period expired in May 2004. This action commenced on July 29, 2004, is therefore, untimely.
Plaintiff's cross-motion seeking an order to "extend" plaintiff's time to serve the City or otherwise "toll" the limitations period "in the interest of justice" is denied. The statute of limitations had already run more than sixty days prior to the plaintiff's first attempt to effect service upon the City. CPLR § 201 provides that no Court shall extend the time limited by law for the commencement of an action. [*4]
The cases cited by plaintiff do not dictate a contrary result. Busler v Corbett, 259
AD2d 13 (4th Dept 1999), involved extending the time in which a plaintiff must serve a defendant after commencing an action pursuant to CPLR § 306-b. The Court allowed plaintiff an extension beyond the 120 day period in the interests of justice because the action was commenced within the statutory period for the cause of action. Watson v Town of Greenburgh, 233 AD2d 438 (2d Dept 1996), also cited by plaintiff, held that it was an abuse of discretion not to allow proof of service to be filed nunc pro tunc where the action had be commenced within the applicable statute of limitations period. Neither case permitted maintenence of an action after the limitations period had already run.
Accordingly, for these reasons, plaintiff's action against the City is dismissed for failure to comply with the one year and ninety day statute of limitation within which to commence an action set forth in General Municipal Law § 50-i. Having dismissed plaintiff's action against defendant City on statute of limitations grounds, the Court does not reach the issue of whether the Stipulation served to waive the City's personal jurisdiction defenses.
In its papers, defendant Cruz does not oppose the granting of summary judgment dismissing plaintiff's action against the City, but requests that its cross-claims against the City for indemnification be allowed to remain. Defendant City asks for dismissal of Cruz's cross-claims against it but provides no legal basis for this position. As Cruz may have a viable claim for indemnification against the City, the City's request to dismiss these claims at this time is denied without prejudice to the subsequent filing of a dismissal motion upon
adequate presentation of fact and law in support thereof.
This constitutes the Decision and Order of this Court.
Court attorney to notify all parties of this Decision/Order.
Dated: July ___, 2005
Staten Island, New York
__________________________ [*5]
Catherine M. DiDomenico
Judge, Civil Court
ASN by _____ on __________
CASAZZA V. THE CITY OF NEW YORK DEPARTMENT OF DESIGN
and CONSTRUCTION AND CRUZ CONSTRUCTION
Index No. 37350/04
Footnotes
Footnote 1: Even if it were assumed that service upon the DDC on July 29, 2004 constituted valid service upon the City.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
