Opinion
April 25, 1996
Appeal from the Supreme Court, New York County (Carol H. Arber, J.).
This is a taxpayer class action against an engineering consultant and a town supervisor, in connection with facilities improvements at the Harbor Hills Park District of the Town of North Hempstead, which were completed in October 1987. The complaint, originally filed in April 1991, alleges waste by reason of payment of extras without the required written authorization, illegal gifts to public officials, and overbilling.
This type of action did not exist at common law ( Herzog v. Town of Thompson, 216 A.D.2d 801, 804), but is purely a creature of statute, viz., General Municipal Law § 51 ( Duffy v. Longo, 207 A.D.2d 860, 862-863, appeal dismissed 86 N.Y.2d 779). As such, it is governed by the three-year Statute of Limitations (CPLR 214; Hartnett v. New York City Tr. Auth., 86 N.Y.2d 438 ). The action was thus untimely, and the complaint as against the individual defendant should have been dismissed on Kiernan's motion for summary judgment.
Commencement was similarly untimely against the contractor, who was otherwise a proper party to such an action ( see, Gaynor v Rockefeller, 21 A.D.2d 92, 98, affd 15 N.Y.2d 120). Even though SPC's cross motion for partial summary judgment was directed only to the second and third causes of action, search of the record warranted dismissal of the entire complaint against that party (CPLR 3212 [b]).
In light of this result, we find it unnecessary to reach the other points raised on appeal.
Concur — Murphy, P.J., Sullivan, Wallach, Ross and Williams, JJ.