        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

321
CA 11-01891
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


SENECA ONE REALTY, LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-RESPONDENT.


FRANK T. GAGLIONE, P.C., AMHERST (KELLIE M. ULRICH OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (CINDY T. COOPER
OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered March 10, 2011 in a breach of contract action.
The order granted the motion of defendant to dismiss the complaint.

     It is hereby ORDERED that said appeal is unanimously dismissed
except insofar as plaintiff challenges the determination that the
action is barred by defendant’s Charter § 21-2, and the order is
otherwise affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
alleging that defendant failed to pay its share of the cost of work
performed on two elevators, as required by a contract between
defendant and plaintiff’s predecessor in interest. Defendant moved to
dismiss the complaint pursuant to CPLR 3211 (a) (7), contending, inter
alia, that the action is barred by section 21-2 of defendant’s
Charter. Supreme Court concluded in its bench decision that section
21-2 required dismissal of the complaint, but denied the motion on the
other grounds raised by defendant. We therefore dismiss the remainder
of the appeal inasmuch as plaintiff is not aggrieved thereby (see CPLR
5511).

     Contrary to plaintiff’s contention, the court properly granted
the motion. In pertinent part, defendant’s Charter § 21-2 provides
that “[n]o action or proceeding to recover or enforce any unliquidated
account or claim against the city shall be brought until such claim
shall have been filed with the city clerk . . . .” We reject
plaintiff’s contention that this is an action for a liquidated account
and thus falls outside the ambit of section 21-2. The contract did
not specify that defendant was required to pay a specific sum of
“money, nor was a specified sum to be paid in any other way. The
damages were unliquidated” (Van Rensselaer v Jewett, 2 NY 135, 139).
Thus, inasmuch as the action is encompassed by section 21-2 and it is
                                 -2-                           321
                                                         CA 11-01891

undisputed that plaintiff failed to comply with the notice of claim
requirement set forth in that section, the court properly granted
defendant’s motion to dismiss the complaint.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
