SZALAY, ZOLTAN v. TOWN OF WEBSTER POLICE DEPARTMENT ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1017
CA 15-02096
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
ZOLTAN SZALAY AND DEBRA SZALAY,
PLAINTIFFS-APPELLANTS,
V MEMORANDUM AND ORDER
TOWN OF WEBSTER POLICE DEPARTMENT AND TOWN OF
WEBSTER POLICE OFFICER SCOTT SMITH,
DEFENDANTS-RESPONDENTS.
ZOLTAN SZALAY, PLAINTIFF-APPELLANT PRO SE.
DEBRA SZALAY, PLAINTIFF-APPELLANT PRO SE.
SUGARMAN LAW FIRM LLP, BUFFALO (BRENNA C. GUBALA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Monroe County (Renee
Forgensi Minarik, A.J.), entered August 12, 2015. The order denied
the motion of plaintiffs for summary judgment, granted the cross
motion of defendants to dismiss the complaint and dismissed the
complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for
personal injuries allegedly sustained by plaintiff Zoltan Szalay
during an altercation with defendant police officer. Contrary to
plaintiffs’ contention, Supreme Court properly granted defendants’
cross motion seeking to dismiss the complaint pursuant to, inter alia,
CPLR 3211 (a) (8) on the ground that the court lacked jurisdiction
because plaintiffs failed to serve a notice of claim as required by
General Municipal Law § 50-e (1). It is well established that the
service of a notice of claim “is a condition precedent to a lawsuit
against a municipal [defendant]” (Davidson v Bronx Mun. Hosp., 64 NY2d
59, 61), and it is undisputed that plaintiffs failed to serve a notice
of claim with respect to the incident at issue. Plaintiffs failed to
preserve for our review their contention that the Acting Supreme Court
Justice should have recused herself because, inter alia, she is a
resident of the Town of Webster and her daughter and plaintiffs’
daughter were classmates inasmuch as they failed to raise those issues
before the court (see generally Matter of Rath v Melens, 15 AD3d 837,
837). In any event, plaintiffs’ “ ‘claim of bias is not supported by
the record and is thus insufficient to require recusal’ ” (Affinity
-2- 1017
CA 15-02096
Elmwood Gateway Props. LLC v AJC Props. LLC, 113 AD3d 1094, 1096). We
have reviewed plaintiffs’ remaining contentions and conclude that they
are without merit.
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court