Beary v. City of Rye

• Decision Date: 04 May 1978
• Citation: 406 N.Y.S.2d 9,44 N.Y.2d 398,377 N.E.2d 453
• Parties: , 377 N.E.2d 453 In the Matter of John BEARY, Appellant, v. CITY OF RYE, Respondent. Monica RODRIGUEZ, an Infant, by Her Mother and Natural Guardian, Gladys Rodriguez, Appellant, v. CITY OF NEW YORK et al., Respondents, et al., Defendants. In the Matter of June PAULETTI, on Behalf of Her Infant Daughter, Donna M. Pauletti, Appellant, v. FREEPORT UNION FREE SCHOOL DISTRICT NO. 9, Respondent. In the Matter of Mary SMALLS, Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Appellants. Edith M. MERCED et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 9

406 N.Y.S.2d 9

44 N.Y.2d 398, 377 N.E.2d 453

In the Matter of John BEARY, Appellant, v. CITY OF RYE, Respondent.

Monica RODRIGUEZ, an Infant, by Her Mother and Natural Guardian, Gladys Rodriguez, Appellant, v. CITY OF NEW YORK et al., Respondents, et al., Defendants.

In the Matter of June PAULETTI, on Behalf of Her Infant

Daughter, Donna M. Pauletti, Appellant, v. FREEPORT UNION FREE SCHOOL DISTRICT NO. 9, Respondent.

In the Matter of Mary SMALLS, Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Appellants.

Edith M. MERCED et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Court of Appeals of New York.

May 4, 1978.

David I. Grauer, White Plains, for appellant John beary.

David E. Worby and Lawrence T. D'Aloise, Jr., White Plains, for respondent City of Rye.

Stephen K. Blunda, New York City, for appellant Monica Rodriguez.

W. Bernard Richland, Corp. Counsel, New York City, for respondents City of New York et al., appellants New York City Health and Hospitals Corp. et al. and Edith M. Merced, et al.

Irving Cohen and Bernard Burstein, New York City, of counsel, for respondents City of New York et al.

Bruce E. Bushlow, Brooklyn, and Andrew L. Wurman, for appellant June Pauletti.

Joseph D. Ahearn and George S. Pickwick, New York City, for respondent Freeport Union Free School District No. 9.

Leonard Koerner and L. Kevin Sheridan, New York City, of counsel, for appellants New York City Health and Hospitals Corp. et al. and Edith M. Merced et al.

Stanley S. Hausen, Flushing, for respondent Mary Smalls.

Louis W. Kaplan, New York City, for respondents New York City Health and Hospitals Corp.

OPINION OF THE COURT

FUCHSBERG, Judge.

These five separate cases against public corporations involve tort claims which cannot be pressed without the filing of a timely notice of claim. Common to all of them is the fact that they accrued more than 90 days before the effective date of recent amendments of subdivision 5 of section 50-e of the General Municipal Law (L.1976, ch. 745, § 2). The heart of the question before us, crucial to survival of each case, is whether the new legislation may be applied retrospectively.

The Legislature fixed September 1, 1976 as the effective date of the amendment. It retained the pre-existing requirement that filing be effected within 90 days of accrual ( § 50-e, subd. 1, par. (a)). But it made two significant modifications of the statute: the grounds on which a court may allow late filing were expanded and the time within which an application for such relief can be made was lengthened.

Before the amendment, the primary ground for extension cognizable by a court was disability arising out of infancy or mental or physical incapacity; additionally, a court could permit late filing when a person entitled to assert a claim had either died before the expiration of the 90-day period or had placed justifiable reliance upon settlement representations made in writing by an authorized representative or insurance carrier for the party against whom the claim was to be made. The new standards are far more elastic. In substance, they require a court "to consider" not only the factors to which it was formerly limited, but other newly specified ones along with "all other relevant facts and circumstances". Moreover, in deciding whether to exercise its discretion, the court's attention is also to be focused on whether the public corporation or those acting for it acquired actual knowledge of the essential facts of the claim within the 90-day period or a reasonable time thereafter. ^*

The outside time limit for a claimant who seeks to file belatedly was formerly "one year after the happening of the event upon which the claim is based". Under the revision, the period during which late filing may be permitted is identical with the "time limited for the commencement of an action by the claimant against the public corporation". Save where the claimant is under a disability (see Abbatemarco v. Town of Brookhaven, 26 A.D.2d 664, 272 N.Y.S.2d 450; La Fave v. Town of Franklin, 20 A.D.2d 738, 247 N.Y.S.2d 72), this is one year and 90 days (General Municipal Law, § 50-i).

With this before-and-after picture of the statute in mind, we outline the posture in which each of the five cases comes to us:

In Matter of Beary the claimant seeks damages for false arrest and malicious prosecution against the City of Rye. The criminal proceedings on which his claim is premised terminated in his favor when the Grand Jury dismissed all the charges against him. That was on January 14, 1976. His right to sue therefore accrued on that date (see Robbins v. Robbins, 133 N.Y. 597, 30 N.E. 977; Giglio v. Delesparo, 46 A.D.2d 928, 361 N.Y.S.2d 721). However, his claim was not filed until April 23, 1976, 10 days after the 90-day period had expired. Eight months later, on December 14, 1976, relying on the amendment which had gone into effect on the intervening September 1 and on evidence that the 10-day delay had been without prejudice to the city because its insurance carrier had received timely knowledge of the facts surrounding his claim, Beary moved to file a late notice or to have his original notice of claim declared timely. Special Term granted the alternative relief. The Appellate Division, Second Department, reversed, holding that no part of the amendment was applicable to claims accruing prior to its effective date and that claimant did not meet the preamendment standards (59 A.D.2d 905, 399 N.Y.S.2d 140).

In Rodriquez the claim is that an infant prematurely born on December 22, 1969 suffered retrolental fibroplasia, a condition affecting her sight, as a result of malpractice in the administration of excessive oxygen in an incubator at a New York City hospital. Though her parents were informed of her condition before the termination of treatment at the hospital on April 20, 1970, they did not file a claim until January 9, 1976. The mother then successfully moved at Special Term for leave to do so. On October 5, 1976, the Appellate Division, Second Department, finding that the claim was untimely, reversed (54 A.D.2d 692, 387 N.Y.S.2d 283).

Matter of Pauletti involves an 11-year-old child who was injured when she fell down a flight of stairs at a school operated by the Freeport Union Free School District. The accident took place in June, 1973; no claim was made until January, 1976. The infant's mother than moved for an order directing the school district to accept a notice of claim nunc pro tunc as of a date within 90 days after the injury had occurred and to extend the infant's time to institute action for a year following the date of the order. Special Term denied both this motion and one to renew made after the effective date of the 1976 amendment to section 50-e. The Appellate Division, Second Department, by a divided court, affirmed the first order (and held the second one academic), essentially for the reasons articulated in Rodriguez, 59 A.D.2d 556, 397 N.Y.S.2d 146.

In Matter of Smalls the claimant seeks to file a claim for medical malpractice alleged to have occurred in a municipal hospital on May 8, 1973 during the performance of a myelogram, a diagnostic procedure to visualize blockage of the spinal canal. The hospital continued to treat the complainant until October 9, 1973. The record supports her allegation that she did not learn that her continuing back and leg symptoms may have been caused by negligent administration of the myelogram until June 25, 1974, when a physician at another hospital brought that possibility to her attention. Her notice of claim was filed on August 29, 1974; on September 6, 1974 she moved for a declaration that it had been timely served. This motion initially was denied by Special Term, but on February 27, 1975 it was granted after reargument on the rationale of the "foreign object exception" to the general rule that a cause of action for medical malpractice accrues at the time the act occurs and not at the time of its discovery (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871; cf. CPLR 214-a). On December 14, 1976, the Appellate Division, First Department, acknowledging that the case was not truly one involving a foreign object, but extrapolating from Flanagan and pointing to the fact that section 50-e had been amended while the matter had been sub judice, affirmed "on all the facts and circumstances" (55 A.D.2d 537, 538, 389 N.Y.S.2d 372, 373).

Merced is another medical malpractice case. This claimant underwent a sterilization operation in a New York City municipal hospital on September 6, 1971. She alleges that on November 20, 1973, when her genital organs were again exposed during emergency surgery for an ectopic pregnancy, it was found that one of her fallopian tubes, which was to have been occluded in the course of the 1971 surgery, had not been sutured. She served a notice of claim on December 26, 1973 and thereafter commenced suit. Defendant's answer having pleaded late filing of the notice as an affirmative defense, she moved to strike it pursuant to CPLR 3211 (subd. (b)). The motion was denied on March 2, 1976, essentially on the ground that neither the "foreign object" nor the "continuous treatment" theories were available to defer the date of accrual (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777) and that the claim therefore had come into existence in 1971. On February 17, 1977, by a divided court, the Appellate Division, First Department, expressly following its decision in Smalls and citing to Flanagan, reversed (56 A.D.2d 553, 391 N.Y.S.2d 863).

In passing on these cases, our task is to determine whether, in relaxing the strictures of section 50-e in 1976, the Legislature intended that the changes it wrought apply to claims that accrued before September 1 of that year. Of course, had the amendatory language been explicit, we would have had...