Camarella v. East Irondequoit Central School Bd.
| Decision Date | 23 February 1973 |
| Parties | Bonita CAMARELLA, an infant under the age of fourteen years, by her parent and natural guardian, Louis Camarella, and Louis Camarella, Individually, Appellants-Respondents, v. The EAST IRONDEQUOIT CENTRAL SCHOOL BOARD, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Laverne, Sortino & Noto, Rochester (Thomas Laverne, Rochester, of counsel), for appellants-respondents.
Traynor, Skehan & Marks, Rochester (Homer H. Marks, Rochester, of counsel), for respondent-appellant.
Before DEL VECCHIO, J.P., and MARSH, MOULE, CARDAMONE and HENRY, JJ.
The eleven-year old plaintiff was injured on the defendant's school grounds on October 22, 1968. Her father consulted and retained a lawyer within eight days after the accident. A Notice of Claim was filed on January 22, 1969, two days beyond the ninety-day period required in section 50--e of the General Municipal Law. Thereafter appropriate pleadings were served and the case was tried before a jury which rendered a verdict in the amount of $13,000 in favor of the infant plaintiff and $1,102.61 in favor of the plaintiff-father for medical expenses.
Following the jury verdict, the defendant moved to set it aside on the ground that the Notice of Claim was untimely served, being two days late. The plaintiffs moved to amend certain letters, sent by their attorney, to have them serve as the Notice of Claim required by section 50--e and to be permitted to file a Notice of Claim nunc pro tunc. The Trial Court denied plaintiffs' motions, set the plaintiffs' verdicts aside and directed a new trial (68 Misc.2d 123, 326 N.Y.S.2d 350), from which determination the plaintiffs have appealed. Defendant has cross-appealed the granting of a new trial.
We have concluded that the Trial Court correctly denied plaintiffs' motions and was properly compelled to set aside the plaintiffs' verdicts but erred in ordering a new trial.
Plaintiffs' attorneys have urged on this appeal their reliance upon and the applicability of the 'three months' time limitation contained in subdivision 1 of section 3813 of the Education Law within which written claims must be presented against the governing body of any school district. Such reliance is misplaced (Pugh v. Board of Education, Central Dist. No. 1--Fayetteville-Manlius School District, 38 A.D.2d 619, 326 N.Y.S.2d 300, affd. 30 N.Y.2d 968, 335 N.Y.S.2d 830, 287 N.E.2d 621). Further, the same section of the Education Law specifically states that 'notwithstanding anything to the contrary hereinbefore contained in this section, no action . . . founded upon tort shall be prosecuted or maintained against any of the parties named in this section . . . unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law' (Education Law, § 3813 subd. 2). 1 The timeliness of the service of the Notice of Claim was a condition precedent for plaintiffs to plead and prove (Winter v. City of Niagara Falls, 190 N.Y. 198, 203, 82 N.E. 1101, 1102--1103; Debes v. Monroe County Water Authority, 16 A.D.2d 381, 228 N.Y.S.2d 364) and not an affirmative defense to be pleaded and proved by the defendant (CPLR § 3018(b)). This matter was properly put in issue by defendant's denial contained in its answer of 'knowledge or information sufficient to form a belief' as to the allegation of timely service of the claim stated in plaintiffs' complaint (CPLR § 3018(a)). Relief from late filing may be obtained upon motion made within 'one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim' (Gen.Mun.L. § 50--e, subd. 5). The motion made by plaintiffs after the trial was not made within one year, nor was it made prior to the commencement of the action and it was, therefore, untimely on both counts. Further, the retention of a late Notice of Claim by the defendant School Board standing alone may not be construed as a waiver of timely service (Miller v....
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