Christian v. Village of Herkimer

CourtNew York County Court
Writing for the CourtMcCARTHY
Citation208 Misc. 814,148 N.Y.S.2d 384
PartiesApplication of Malcolm CHRISTIAN, for Leave to Serve Notice of Claim v. The VILLAGE OF HERKIMER, New York.
Decision Date20 October 1955

Page 384

148 N.Y.S.2d 384
208 Misc. 814
Application of Malcolm CHRISTIAN, for Leave to Serve Notice of Claim
v.
The VILLAGE OF HERKIMER, New York.
Herkimer County Court.
Oct. 20, 1955.

Page 385

[208 Misc. 815] Andrew J. Moore, Herkimer, for Malcolm Christian.

Philip D. O'Donnell, Herkimer, for Village of Herkimer.

McCARTHY, Judge.

This is an application by Malcolm Christian, under Section 50-e, Subd. 5 of the General Municipal Law, for permission to serve a notice of claim against the Village of Herkimer, for alleged negligence.

Under this statute, such a notice is required to be filed within ninety (90) days after the claim arises, and failure to comply with the proceedings of this section may preclude an action for alleged negligence unless the petitioner shows that he has been mentally or physically incapacitated, and because of such condition has failed to serve his notice of claim within the time limited.

Any further extension beyond the statutory ninety (90) days, has been generally frowned upon by the courts.

In McEwan v. City of New York, 279 App.Div. 802, 109 N.Y.S.2d 479; Id., 304 N.Y. 628, 107 N.E.2d 98, seven and a half months elapsed before such a claim was attempted to be filed.

In Garrido v. City of New York, 272 App.Div. 756, 69 N.Y.S.2d 917, the claimant failed to produce facts showing physical incapacity.

Such a failure was again found in Haas v. Incorporated Village of Cedarhurst, 272 App.Div. 1031, 74 N.Y.S.2d 72.

Auricchio v. City of New York, 272 App.Div. 1067, 74 N.Y.S.2d 765, evidence was produced to show that within the statutory period, the defendant had considerable physical activity which of course, overcame any question of disability.

In Ruskin v. City of New York, 271 App.Div. 934, 67 N.Y.S.2d 597, four months unexplained delay after the end of disability defeated the motion for leave to file notice of claim.

The Judicial Council recommended this section of the General Municipal Law to rectify the frequent and often gross injustices by which defects, in form have prevented considerations on their merits of claims against municipal corporations.

[208 Misc. 816] We have been admonished that this section should be liberally construed. Boettner v. Village of Mamaroneck, Sup., 123 N.Y.S.2d 849; Miller v. City of New York, 187 Misc. 926, 63 N.Y.S.2d 44.

The restrictions imposed upon suits against municipalities for acts arising out of proprietary as distinguished from governmental functions

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3 practice notes
  • Christian v. Village of Herkimer
    • United States
    • New York Supreme Court Appellate Division
    • December 20, 1957
    ...notice of motion was returnable on July 26, 1955. Three months later, on October 27, 1955, an order of the County Court, Herkimer County, 208 Misc. 814, 148 N.Y.S.2d 384, granted plaintiff permission to serve his notice of claim on or before November 15, 1955. The notice was served on the s......
  • Gonzales v. Merced County
    • United States
    • California Court of Appeals
    • April 4, 1963
    ...was not filed earlier. An interpretation of comparable sections to our claims statutes is discussed in Christian v. Village of Herkimer, 208 Misc. 814, 148 N.Y.S.2d 384; Application of Kramer, 2 Misc.2d 644, 150 N.Y.S.2d 489; Boettner v. Village of Mamaroneck, Sup., 123 N.Y.S.2d 849; and Mi......
  • Christian v. Village of Herkimer
    • United States
    • New York Court of Appeals
    • November 13, 1958
    ...late notice of claim, on ground that he had been disabled by the accident. On October 27, 1955, the County Court of Herkimer County, 208 Misc. 814, 148 N.Y.S.2d 384, granted dedestrian permission to serve notice of claim on or before November 15, 1955, and notice was served on October 27, 1......
3 cases
  • Christian v. Village of Herkimer
    • United States
    • New York Supreme Court Appellate Division
    • December 20, 1957
    ...notice of motion was returnable on July 26, 1955. Three months later, on October 27, 1955, an order of the County Court, Herkimer County, 208 Misc. 814, 148 N.Y.S.2d 384, granted plaintiff permission to serve his notice of claim on or before November 15, 1955. The notice was served on the s......
  • Gonzales v. Merced County
    • United States
    • California Court of Appeals
    • April 4, 1963
    ...was not filed earlier. An interpretation of comparable sections to our claims statutes is discussed in Christian v. Village of Herkimer, 208 Misc. 814, 148 N.Y.S.2d 384; Application of Kramer, 2 Misc.2d 644, 150 N.Y.S.2d 489; Boettner v. Village of Mamaroneck, Sup., 123 N.Y.S.2d 849; and Mi......
  • Christian v. Village of Herkimer
    • United States
    • New York Court of Appeals
    • November 13, 1958
    ...late notice of claim, on ground that he had been disabled by the accident. On October 27, 1955, the County Court of Herkimer County, 208 Misc. 814, 148 N.Y.S.2d 384, granted dedestrian permission to serve notice of claim on or before November 15, 1955, and notice was served on October 27, 1......

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