SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

705 

CA 14-00288 

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

 

TOWN OF MACEDON, PLAINTIFF-RESPONDENT, 

 

V MEMORANDUM AND ORDER

VILLAGE OF MACEDON, DEFENDANT-APPELLANT. 

HARRIS, CHESWORTH, O’BRIEN, JOHNSTONE & WELCH, LLP, ROCHESTER (EUGENE

WELCH OF COUNSEL), FOR DEFENDANT-APPELLANT. 

ANTHONY J. VILLANI, P.C., LYONS (ANTHONY J. VILLANI OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Wayne County (Daniel

G. Barrett, A.J.), entered April 11, 2013. The order granted the

application of plaintiff for a preliminary injunction and denied the

cross motion of defendant to dismiss the amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff, Town of Macedon (Town), commenced this

action seeking to enjoin defendant, Village of Macedon (Village), from

terminating sewer service to the sewer units located within the Town. 

The Town also sought, “and/or,” to require the Village continue to

provide such service for reasonable compensation until the Town and

the Village could agree on a contract pertaining to such service or

until a court decided the rights and liabilities of the parties. The

parties previously had executed an Intermunicipal Agreement for Sewage

Treatment (Agreement), pursuant to which the Village provided sewage

treatment services for 575 Town residents. The Agreement was set to

expire by its terms in December 2012. As the expiration date

approached, representatives from the Town and Village began discussing

the possibility of either a replacement agreement or an interim

agreement. The Village took the position that, when the Agreement

expired, the Town’s “rights under the [Agreement] expire[d].” The

Village informed the Town that, if the Town refused to make payments

for services after January 1, 2013, then the “current sewage treatment

provided by the Village cannot continue[;] . . . no payment, no

services rendered.” The Town, however, contended that it could “make

no payments to anyone in the absence of a contract.” Shortly

thereafter, the Town commenced this action. The Town also applied for

a preliminary injunction seeking the same relief pending the

determination of the action. 
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CA 14-00288 

The Village opposed the application for a preliminary injunction

and cross-moved to dismiss the complaint pursuant to CPLR 3211 (a)

(5). Specifically, the Village contended that the action was barred

by CPLR 9802 because the complaint was filed after the expiration of

the statute of limitations and, further, because the Town failed to

file a notice of claim related to this action. Supreme Court deemed

the cross motion to apply to the amended complaint that was thereafter

served by plaintiff, and the court granted the preliminary injunction

and denied the cross motion. We now affirm.

We note at the outset that the Village’s sole ground in

opposition to the application for a preliminary injunction and in

support of its cross motion was its contention that the action is

barred by CPLR 9802. That section provides, in relevant part, that

“no action shall be maintained against the village upon or arising out

of a contract of the village unless the same shall be commenced within

eighteen months after the cause of action therefor shall have accrued,

nor unless a written verified claim shall have been filed with the

village clerk within one year after the cause of action shall have

accrued, and no other action shall be maintained against the village

unless the same shall be commenced within one year after the cause of

action therefor shall have accrued, nor unless a notice of claim shall

have been made and served in compliance with section fifty-e of the

general municipal law. The omission to present a claim or to commence

an action thereon within the respective periods of time above stated

applicable to such claim[] shall be a bar to any claim or action

therefor against said village; but no action shall be brought upon any

such claim until forty days have elapsed after the filing of the claim

in the office of the village clerk.” 

The Village contends, as it did in opposition to the application

for a preliminary injunction and in support of its cross motion to

dismiss pursuant to CPLR 3211 (a) (5), that the action is time-barred

under the strict statute of limitations contained in CPLR 9802. 

Specifically, the Village takes the position that the Town’s action is

based on an alleged breach of the Agreement, and any cause of action

for such a breach would have accrued in 1989 when the Village failed

to provide the Town with documentation concerning the Town’s alleged

ownership interest in the sewage treatment plant. The Town, however,

responds that the instant action is not an action arising out of a

contract but, rather, it is an action for a permanent injunction. The

Town thus contends that the cause of action for a permanent injunction

accrued when the Village threatened to terminate sewer service two

weeks before the action was commenced. 

“Although it is permissible to plead a cause of action for a

permanent injunction . . . , permanent injunctive relief is, at its

core, a remedy that is dependent on the merits of the substantive

claims asserted” (Corsello v Verizon N.Y., Inc., 77 AD3d 344, 368, mod

on other grounds 18 NY3d 777, rearg denied 19 NY3d 937; see Weinreb v

37 Apts. Corp., 97 AD3d 54, 59). Indeed, “injunctive relief is simply

not available when the plaintiff does not have any substantive cause

of action” (Weinreb, 97 AD3d at 58). Here, the Town seeks a permanent

injunction based on its contentions that the Village improperly
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CA 14-00288 

threatened to discontinue sewage treatment service without reasonable

notice (see 1983 Opns St Comp No. 83-200), and violated the Agreement

when it refused to acknowledge the Town’s ownership interest and to

transfer proportional ownership to the Town. Inasmuch as this is a

CPLR 3211 motion to dismiss, we must “[a]ccept[] the allegations in

the [amended] complaint as true and accord[ ] [the Town] the benefit

of every favorable inference” (190 Murray St. Assoc., LLC v City of

Rochester, 19 AD3d 1116, 1116, citing Leon v Martinez, 84 NY2d 83, 87-

88). The Town alleged that its cause of action for a permanent

injunction accrued when the Village threatened to terminate sewage

treatment services to the Town, i.e., when the Village first acted

inconsistently with the provisions of the Agreement. Until that time,

the Village had no “ ‘liability for [the] wrong’ ” (Ely-Cruikshank Co.

v Bank of Montreal, 81 NY2d 399, 403). We thus conclude that the

Town’s allegations are sufficient to establish that the action is

timely whether using the 18-month statute of limitations for actions

“arising out of a contract” or the one-year statute of limitations for

all other actions against a Village (CPLR 9802).

The Village further contends that this action is barred under

CPLR 9802 because the Town failed to file the requisite notice of

claim and is now time-barred from doing so. While we agree with the

Village that the notice of claim requirements of CPLR 9802 apply to

all actions, including actions in equity (see Genesee Brewing Co. v

Village of Sodus Point, 126 Misc 2d 827, 831-833, affd for reasons

stated 115 AD2d 313; see also Mendik v Incorporated Vil. of

Lattingtown, 76 AD3d 616, 618; Greco v Incorporated Vil. of Freeport,

223 AD2d 674, 674), we agree with the Town that an exception to the

notice of claim requirement exists where “compliance would prevent

obtaining the relief required because of the immediacy [of] the relief

warranted” (Genesee Brewing Co., 126 Misc 2d at 832). Here, the

Village threatened termination of sewage treatment services only two

weeks before the Agreement was set to expire, and the Town contends

that it was thus unable to wait the statutory 40 days between filing a

notice of claim and commencing this action. 

The Village also contends that the need for immediate relief was

caused by the Town itself. While such a contention may ultimately

have merit, we conclude that the Town sufficiently alleged that it was

faced with an immediate need for relief and, therefore, the court

properly denied the Village’s cross motion (see 190 Murray St. Assoc.,

LLC, 19 AD3d at 1116; see generally Leon, 84 NY2d at 87-88). 

In opposing the application for a preliminary injunction, the

Village contended only that there was not a likelihood of success on

the merits because the action was barred under CPLR 9802. Inasmuch as

we have concluded that the Town’s allegations, if true, are sufficient

to establish that the action is not barred by CPLR 9802, we conclude

that the court did not abuse its discretion in granting the Town’s

application for a preliminary injunction (see generally Destiny USA

Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 
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CA 14-00288 

216).

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court