March 16, 1971
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered April 20, 1970 in Albany County, upon a verdict rendered at a Trial Term. On September 6, 1966, respondent obtained a building permit from the Superintendent of Buildings of the Town of Colonie for renovations to premises she had leased. The application stated that the premises were intended to be used "for western shows and restaurant". The zoning ordinance of the town did not permit the conduct of a restaurant on the premises in question. However, prior to the enactment of the ordinance, the premises had been occupied for dancing and the service of food. Accordingly, the Superintendent of Buildings considered the proposed restaurant as a nonconforming use. As work progressed at the leased premises, periodic inspections by employees of the town's building department were made. Three weeks after the issuance of the building permit, the Superintendent of Buildings apparently discovered for the first time that bar equipment was being installed on the premises. Since the on-premises sale of liquor was not permitted under the zoning ordinance, nor had the premises ever been used for such purposes, he revoked the permit. Thereafter respondent applied for a variance to the Town Board of Zoning Appeals. However, she voluntarily withdrew her application before the board made its determination. Seven months after the revocation of the building permit by the Superintendent of Buildings, a notice of claim was served on the town and this action for damages followed. Prior to the commencement of the jury trial, appellant's motion to dismiss the complaint on the ground that respondent failed to comply with section 50-e Gen. Mun. of the General Municipal Law, which requires the filing and service of a notice of claim upon the municipality within 90 days after the cause of action has arisen, was denied. After trial, a verdict was returned in favor of respondent in the amount of $8,000. In addition to its contention that respondent failed to comply with the notice requirements of section 50-e Gen. Mun. of the General Municipal Law, appellant asserts that the action taken by the Superintendent of Buildings did not subject appellant to liability since his determination was discretionary and quasi-judicial. We agree. The gravamen of the complaint was in tort, requiring compliance with section 50-e. The revocation of the building permit occurred on September 27, 1966, which was the date of accrual of the cause of action, if any. The purported notice of claim was received by the town on April 20, 1967, after a lapse of seven months. Respondent's contention that the cause of action was a "continuing" one is unavailing. Although reversal is required without reaching the merits, we observe that the act of the Superintendent of Buildings was quasi-judicial in nature and could not subject the town to liability ( Bernkrant v. State of New York, 26 A.D.2d 964; Rottkamp v. Young, 21 A.D.2d 373, affd. 15 N.Y.2d 831). Judgment reversed, on the law and the facts, and complaint dismissed, without costs. Staley, Jr., J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.