Quintino Tesciuba, Appellant, v. Edward I. Koch, Individually and as Mayor of the City of New York, et al., Respondents

Quintino Tesciuba, Appellant, v Edward I. Koch, Individually and as Mayor of the City of New York, et al., Respondents. [626 NYS2d 164] [MAJORITY] Order, Supreme Court, New York County (Walter Tolub, J.), entered March 18, 1994, which granted defendants’ motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint, unanimously affirmed, without costs. As defendant’s prior CPLR 3211 (a) motion was expressly denied "without prejudice”, there was no bar to this subsequent motion. Given that plaintiff’s allegations against defendants concern alleged tortious actions by defendants only in their official capacities as municipal employees, and since said actions were clearly based on discretionary judgments, plaintiff was obligated to comply with the notice of claim requirements of General Municipal Law §§ 50-e, 50-i, and 50-k (1) (b), which he failed to do. Moreover, as defendants were acting in their official capacity, they are not liable for any injurious consequences of their official, discretionary action (see, Tango v Tulevech, 61 NY2d 34, 40-41). We have considered all other claims raised by plaintiff and find them meritless. Concur—Ross, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.