Grant v. Town of Kirkland

In my opinion, Special Term properly denied the motion to strike out the affirmative defense based on section 50-e of the General Municipal Law.

Even if we assume that under the existing statutes, no notice of claim need be served in connection with a claim against a town for incidental damages in an action for equitable relief, it does not follow that the affirmative defense should be stricken from the answer in this case on a motion in advance of trial. It cannot be determined until the trial whether the plaintiffs will succeed in their prayer for equitable relief. It may well turn out upon…