Stewart v. Scheinert , 52 A.D.2d 636 ( 1976 )

In a taxpayers’ action pursuant to section 51 of the General Municipal Law, the appeal is from so much of an order of the Supreme Court, Rockland County, entered November .13, 1975, as denied, "in all respects”, the branch of appellants’ motion which sought dismissal of the entire complaint, or each cause or action thereof, for lack of merit. Order affirmed insofar as appealed from, without costs or disbursements. Special Term correctly concluded that this complaint sets forth only a taxpayers’ action under section 51 of the General Municipal Law, notwithstanding plaintiffs’ subsequent attempt to carve out a separate action under section 1983 of the Public Health and Welfare Law (US Code, tit 42, § 1983). Each of the five causes of action alleges that defendants committed unlawful official acts with consequent waste of public funds and misuse of public property. Therefore, Special Term properly preserved the complaint in its entirety as adequately pleaded under section 51. To the extent that the plaintiffs also sought punitive damages, Special Term correctly concluded that section 51 makes no provision for such an award under any of the pleaded causes of action. Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur. [84 Misc 2d 672.]