I. PROCEDURAL HISTORY The plaintiff, MICHAEL CORDARO (“plaintiff”) commenced this small claim against TOWN OF GREECE ASSESSOR, RICHARD BAART (“defendant”) in the Justice Court for the Town of Greece, County of Monroe, State of New York, in the amount of $3,000.00, plus the $15.00 court filing fee, for a total of $3,015.00 for, according to the Small Claims Complaint Form filed on March 11, 2021, “Negligence and malpractice as a public official in public office, and obstruction of justice. Failing to provide required disclosures in a court proceeding. Misconduct in public office as discribed [sic] within the attached report. Violation of taxpayer rights to challenge government assessment motion.” On April 16, 2021, the Hon. Michael L. Dollinger, Monroe County Court Judge, issued an Order Granting Motion for Removal From Greece Town Court and Hereby Transferred to Parma Town Court Pursuant to C.P.L.R. §325(g) (“Order of Transfer”) based on the recusal and disqualification of the Greece Town Justices where this Small Claim was originally filed based upon the purported jurisdiction of the parties. Following the receipt of Judge Dollinger’s Order of Transfer on or around May 6, 2021, the Court Clerk in the Town of Parma properly served a Notice of Small Claim scheduling this matter for June 17, 2021. See 22 N.Y.C.R.R. §214.10(e). The parties appeared on June 17, 2021 to participate in a fair and impartial hearing of this small claim. Prior to the swearing in of any witnesses however, including the plaintiff appearing pro se, the defendant, by and through his counsel, Jeremy M. Sher, Esq., submitted Defendant’s Memorandum of Law dated June 17, 2021 for the Court’s consideration. The Court heard argument from defendant’s counsel in support of his legal arguments that (1) res judicata bars plaintiff’s attempt to relitigate the Small Claims Assessment Review (“SCAR”) Hearing or Article 78 Proceeding, and (2) plaintiff’s failure to serve a Notice of Claim bars this action. The Court also heard from the plaintiff in opposition to defendant’s request for a dismissal on both of the legal arguments stated herein. Following the initial appearance of June 17, 2021, the Court conferenced the matter on the record with plaintiff and defendant’s counsel on June 24, 2021 to advise the parties that the Court had reviewed the argument thus far and wanted to provide both parties with an opportunity to submit additional material in support of, and in opposition to, defendant’s arguments raised for the first time in the Memorandum of Law received on June 17, 2021. The parties thereafter submitted their respective legal briefs on July 8, 2021, including Plaintiff’s Supplemental Correspondence and corresponding Exhibits A, B, and C, and Defendant’s Supplemental Memorandum of Law and corresponding Exhibits A and B. The Court thereafter scheduled the matter for Thursday, August 19, 2021 at 6:00 p.m. and reserved the opportunity to submit a written decision upon due deliberation of the matter prior to the return date and time. It should be noted that neither the plaintiff, nor the defendant, were sworn in as witnesses on June 17, 2021, or any other date and time by this Court. The Court received legal argument only and advised the parties that a Small Claim Hearing may be convened on a future date if the Court denied the defendant’s request for a dismissal and was to proceed on the factual merits of the plaintiff’s small claim. II. LEGAL ANALYSIS and CONCLUSIONS OF LAW The purpose of Small Claims Court is to do substantial justice between the parties according to the rules and principles of substantive law. See Uniform Justice Court Act §1804 (McKinney’s 2021); see Hampton v. Annal Management Co., Ltd., 164 Misc 2d 287 (City Civ. Ct. 1994), appeal dismissed, 168 Misc 2d 138 (App. Term 1996). Small Claims Court is designed to provide litigants with a simple, informal and inexpensive procedure for the prompt determination of claims. See Uniform Justice Court Act §1802 (McKinney’s 2021). Although procedural rules may be relaxed, cases must be decided according to the rules and principles of substantive law. See Uniform Justice Court Act §1804. This Court is bound by this standard; a standard which has been supported throughout many terms of this Court and others similarly situated throughout New York State. Accordingly, the goal of this Court throughout this entire proceeding is to ensure that substantial justice is done between the parties relying on the sound principles of statutory and case law; in doing so, this Court is required to deliberate upon the facts and apply the law to those facts. Under New York law, even in the relatively informal atmosphere of Small Claims Court, plaintiff bears the burden of establishing its case by a preponderance of the evidence. See Naclerio v. Adjunct Faculty, 1 Misc 3d 135 (Appellate Term 2003); see also Rodriguez v. Mitch’s Transmission, 32 Misc 3d 126 (Appellate Term 2011). In other words, plaintiff must prove its case by the greater weight of the evidence. If the testimony is evenly balanced, judgment must be rendered against the plaintiff. However, before this Court can hear the factual merits of any case to determine if plaintiff has met its burden, including a small claims matter, the Court must resolve any legal issues or jurisdictional prerequisites that may be raised by either party based upon sound principles of statutory and case law. In this case, defendant argues that (1) res judicata bars plaintiff’s attempt to relitigate the SCAR Hearing or Article 78 Proceeding, and (2) plaintiff’s failure to serve a Notice of Claim bars this action. Before this Court may swear in the witnesses and hear their factual claims and defenses, the Court must resolve these two legal issues. In doing so, this Court concludes that plaintiff’s failure to serve a Notice of Claim as articulated in Point 2 bars this action and does not require this Court to further deliberate over the additional legal argument raised by defendant at Point 1 which would require additional fact finding and sworn testimony at a Small Claims Hearing concerning plaintiff’s 2020/2021 property tax assessment that he alleges in his Small Claims Complaint and the arguments articulated in Plaintiff’s Supplemental Correspondence of July 8, 2021 at pages 4 through 9. See generally, TELX NY LLC v. Tax Comm’n, 190 AD3d 595, 596 (1st Dept. 2021) (citing Parker v. Blauvelt Volunteer Fire Co., 93 NY3d 343, 347 [1999]); see also Williams v. City of Yonkers, 160 AD3d 1017, 1018 (2d Dept. 2018) (quoting Parker, 93 NY2d at 347-48), Kraebel v. NY City Dept. of Fin., 217 AD2d 416, 417 (1st Dept. 1995). As deduced from the arguments by both parties and the legal history that led to this small claim, there is no disagreement between the parties that defendant was a public officer in the Town of Greece. In plaintiff’s Small Claim Complaint Form, he alleges claims in his own words against defendant of “Negligence and malpractice as a public official in public office.” As such, defendant as a public official is entitled to indemnification by the Town of Greece. As a result, plaintiff must file a Notice of Claim against the Town of Greece for any alleged violations committed by defendant. See, NY General Municipal Law §50-e(1) [McKinney 2021]. Section 50-e(1) of the General Municipal Law states: (a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent’s estate. (b) Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law. Id. Furthermore, Section 50-i(1) of the General Municipal Law states in relevant part: No action or special proceeding shall be prosecuted or maintained against a…town…for personal injury,…or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such…town,…or of any officer, agent or employee thereof,…unless, (a) a notice of claim shall have been made and served upon the…town…in compliance with section fifty-e of this article, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice, or if service of the notice of claim is made by service upon the secretary of state pursuant to section fifty-three of this article, that at least forty days have elapsed since the service of such notice, and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; See NY General Municipal Law §50-i(1) [McKinney 2021]. As plaintiff did not serve the jurisdictional prerequisite of a Notice of Claim within the statutory time period of ninety (90) days after the claim arose, and in the form required within Section 50-e, plaintiff’s action is now barred, despite plaintiff’s arguments in Plaintiff’s Supplemental Correspondence of July 8, 2021 at pages 9 through 18. See Ragosto v. Triborough Bridge & Tunnel Authority, 173 Misc 2d 560, 561 (App. Term 1997) (small claims actions that did not comply with notice of claim requirements must be dismissed). As plaintiff himself noted in Plaintiff’s Supplemental Correspondence of July 8, 2021 at page 17, plaintiff is a Certified Public Accountant and appears pro se. Plaintiff has engaged in an impressive effort in this Court in articulating his legal arguments. Notwithstanding, the statutory requirements and jurisdictional prerequisites must be followed by all parties, regardless of background, training, and legal representation. As such, based upon the arguments and briefs submitted in this case by the plaintiff and defendant, this Court concludes that the principles and rules of substantive law compel a determination that plaintiff’s cause of action in this Court against the defendant must be dismissed for plaintiff’s failure to serve a Notice of Claim as required by New York General Municipal Law §§ 50-e(1) and 50-i(1). Accordingly, IT IS HEREBY ORDERED THAT plaintiff’s small claim against defendant in the amount of $3,000.00, plus the $15.00 court filing fee, is DISMISSED; and, IT IS HEREBY FURTHER ORDERED THAT defendant’s request for an “award of reasonable costs and attorney’s fees against plaintiff as a sanction for bringing a duplicative action after unsuccessfully challenging his SCAR determination in an Article 78 proceeding” is DENIED. For the benefit of the parties to this small claim, review of this Court’s Decision, Order, and Final Judgment may be taken consistent with Uniform Justice Court Act §1807. See Uniform Justice Court Act §1807 (McKinney’s 2021). Moreover, pursuant to Uniform Justice Court Act §1703(b), “An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs: 1. service by the court of a copy of the judgment appealed from upon the appellant. 2. service by a party of a copy of the judgment appealed from upon the appellant. 3. service by the appellant of a copy of the judgment appealed from upon a party. Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. See Uniform Justice Court Act §1703(b) (McKinney’s 2021). This constitutes the Decision, Order, and Final Judgment of the Justice Court in the Town of Parma, County of Monroe, State of New York. Dated: August 19, 2021
