J. Petrocelli Contracting, Inc. v. City of New York

—Order and judgment (one paper), Supreme Cdurt, New York County (Jane Solomon, J.), entered January 8, 1997, dismissing the complaint, unanimously affirmed, without costs. We agree with the motion court that plaintiff subcontractor’s claim against the City for its alleged failure to require procurement of a payment bond by the general contractor pursuant to State Finance Law § 137 sounds in tort, and that the failure to serve a timely notice of claim mandates dismissal (see, Stanford Hgts. Fire Dist. v Town of Niskayuna, 120 AD2d 878; Davidson v Bronx Mun. Hosp., 64 NY2d 59). In view of the foregoing, it is unnecessary to consider the parties’ other contentions. Concur — Rosenberger, J. P., Rubin, Williams, Tom and Saxe, JJ.