Pierson v. City of New York

• Decision Date: 17 June 1982
• Parties: , 439 N.E.2d 331 Elof PIERSON, Respondent, v. CITY OF NEW YORK, Appellant. Ella MOORE, Appellant, v. CITY OF NEW YORK, Respondent. Michael TARQUINIO et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 615

453 N.Y.S.2d 615

56 N.Y.2d 950, 439 N.E.2d 331

Elof PIERSON, Respondent, v. CITY OF NEW YORK, Appellant.

Ella MOORE, Appellant, v. CITY OF NEW YORK, Respondent.

Michael TARQUINIO et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.

Court of Appeals of New York.

June 17, 1982.

Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City (Debra A. James, Stephen J. McGrath and Leonard Koerner, Asst. Corp. Counsels, New York City, of counsel), for City of New York, appellant in the first action, respondent in the second and third actions

Gary Sinawski, New York City, for Ella Moore, appellant.

Edward S. Rudofsky, James B. Zane and Frederick A. Polatsek, New York City, for Michael Tarquinio and another, appellants.

Alan J. Firestone and Donald L. Marcovitz, Brooklyn, for Elof Pierson, respondent.

OPINION OF THE COURT

In Pierson v. City of New York.

MEMORANDUM.

The order of the Appellate Division, 83 A.D.2d 128, 443 N.Y.S.2d 657, should be reversed, with costs, the motion to dismiss the city's affirmative defense should be denied and the certified question answered in the negative.

The 1976 amendments to section 50-e of the General Municipal Law permit a court to grant an application to file a late notice of claim after the commencement of the action but preclude the court from granting an extension which would exceed "the time limited for the commencement of an action by the claimant against the public corporation" (L.1976, ch. 745, § 2 ). That means that the application for the extension may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled (General Municipal Law, § 50-i, subd. 1; Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 262-263, 434 N.Y.S.2d 138, 414 N.E.2d 639). This result is compelled by precedent, by sound principles of statutory interpretation, and by common sense. To permit a court to grant an extension after the Statute of Limitations has run would, in practical effect, allow the court to grant an extension which exceeds the Statute of Limitations, thus rendering meaningless that portion of section 50-e which expressly prohibits the court from doing so. In our view, it was the intention of the Legislature, manifested in the amended statute, to relax the objectionably restrictive features of the old statute, but to fix the period of the Statute of Limitations as the period within which any relief must be sought. With the expiration of the period of limitations comes the bar to any claim.

The history of the statute does not support the dissenter's contention that the Legislature intended to permit the court to grant the application at any time. The 1976 legislative documents, on which the dissent so heavily relies, simply show that the revisions of subdivision 5 of section 50-e were meant to alter the substantive criteria upon which the court could grant the application to file a late notice of claim (Twenty-first Ann. Report of N.Y. Judicial Conference, 1976, pp. 286, 297-303, 358, 401-403, 412). No mention was made of any intent to abandon the long-standing requirement that the application must be made within a specified and relatively short period of time, nor was it proposed that the court be permitted to grant an application to file a late notice of claim whenever made, even many years after the event. On the contrary, Professor Graziano's study expressly states that even if the liberalizing amendments were adopted "applications under subdivision 5 of section 50-e must still be made within one year after the happening of the event upon which the claim is based" (ibid., p. 412). The final version and latest amendment simply extends that period by an additional 90 days.

To the extent that the recent amendments may fail to remove the harsher aspects of the statute, in accordance with this court's suggestion in Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142, 356 N.Y.S.2d 553, 313 N.E.2d 295, it is sufficient to note that calls for broad reform are often met by more modest revisions on the part of the Legislature.

In this case the time for filing a notice without court approval had expired and no application for an extension was made prior to the expiration of the Statute of Limitations. Thus the court lacked the power to authorize late filing of the notice.

In Moore v. City of New York, 84 A.D.2d 562, 443 N.Y.S.2d 267.

MEMORANDUM.

The primary issue is resolved by our decision in Pierson v. City of New York. In addition we find no merit to the plaintiff's contention that the statutory period did not begin to run until she discovered the fact that her building had been destroyed. Demolishing a building located on a city street cannot be fairly characterized as a surreptitious act akin to embezzlement, nor can it be said that the building after its removal is comparable to a hidden object.

In Tarquinio v. City of New York.

Order affirmed, 84 A.D.2d 265, 445 N.Y.S.2d 732, with costs (see Pierson v. City of New York, decided herewith).

MEYER, Judge (dissenting).

The majority reaches its conclusion that an application under subdivision 5 of section 50-e of the General Municipal Law for extension of time must be made within one year and 90 days in reliance on dictum in Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 262-263, 434 N.Y.S.2d 138, 414 N.E.2d 639 and in total disregard of the legislative history of chapter 745 of the Laws of 1976 and of the salutary purpose of the amendments made by that act, which was to alleviate the harshness to which this court itself had called the attention of the Legislature in Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142, 356 N.Y.S.2d 553, 313 N.E.2d 29. Because stare decisis does not require that we accord precedential value to a statement in a prior decision phrased broadly enough to cover the present case but made with respect to facts in the prior case which did not require consideration of the point now in issue (People v. Rosano, 69 A.D.2d 643, 654, 419 N.Y.S.2d 543, affd. 50 N.Y.2d 1013, 431 N.Y.S.2d 683, 409 N.E.2d 1357; Sliosberg v. New York Life Ins. Co., 217 App.Div. 67, 74, 216 N.Y.S. 215, affd. 244 N.Y. 482, 155 N.E. 749; see Colonial City Traction Co. v. Kingston City R. R. Co., 154 N.Y. 493, 495, 48 N.E. 900; 21 C.J.S., Courts, § 190, pp. 309-310), and because review of the history of the amending statute makes crystal clear that the Legislature did not intend the result the majority now reaches, I respectfully dissent and vote to reverse and remit in Moore, to affirm in Pierson and to reverse and reinstate in Tarquinio.

The Cohen dictum upon which the majority relies was stated in discussion of the question "whether the period during which a court may grant an extension of time within which to serve notice of claim is tolled during the infancy of the claimant in accordance with CPLR 208." The answer was in the affirmative because "its terms, the amendment version of section 50-e (subd. 5) makes the period during which such an extension may be granted coextensive with the Statute of Limitations governing the claim" and, therefore, to the extent that CPLR 208 tolled the period of limitations there was "a concomitant tolling of the time during which late notice of claim may be served" (51 N.Y.2d, at pp. 262-263, 434 N.Y.S.2d 138, 414 N.E.2d 639). Not involved or addressed in Cohen was the question on which these cases turn: May the application for extension be made after the governing limitation period has expired? All that the Cohen facts required was the conclusion that the extension authorized by the second sentence of subdivision 5 was at least as long as the applicable limitation period, including any period of tolling. The unfortunate use of the word "during" rather than "for" in Cohen's statement that subdivision 5 "makes the period during which such an extension may be granted coextensive with the Statute of Limitations" should not now be permitted to deprive the three claimants involved in these appeals of the right to litigate their claims. Especially is this so because the history of the amending statute shows that although Cohen's tolling result was intended by the Legislature ¹ its gratuitous limitation of time to apply for an extension was not.

To meet Camarella's suggestion for revision of section 50-e "in order that a more equitable balance may be achieved between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation" (34 N.Y.2d, supra, at pp. 142-143, 356 N.Y.S.2d 553, 313 N.E.2d 29) and similar problems that had been brought to its attention, the Office of Court Administration commissioned a comprehensive study by Professor Paul S. Graziano of St. Johns' University School of Law. ² On the basis of that Study, from which however it departed in some respects, the Judicial Conference recommended changes in section 50-e among other statutes. ³ It noted that "the functional purpose of the notice of claim is to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently" (Report, at pp. 286, 302) and that "The tightly woven provisions of the present law governing leave to serve a late notice of claim (subd. 5) should be loosened, keeping in mind the functional purpose of the notice, stated above, and the need to balance the interests of the public and of the injured person" (Report, at p. 287). It summarized the purpose of its recommendations as follows (at p. 288):

"A more equitable balance has been sought by (1) breathing greater flexibility into section 50-e without defeating its basic purpose, (2) codifying and clarifying existing decisional law on troublesome questions, and (3) overruling decisional law and repealing or amending statutes that do not reflect the...