Christian v. Village of Herkimer

• Decision Date: 20 October 1955
• Parties: Application of Malcolm CHRISTIAN, for Leave to Serve Notice of Claim v. The VILLAGE OF HERKIMER, New York.
• Court: New York County Court

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.

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.

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 are interrogations of the common law and hence, courts will liberally construe statutes, protecting rights of the public in dealing with municipalities in connection with such proprietary functions.

The section is designed solely for the benefit of the municipality to assure an adequate opportunity to investigate accidents and explore the merits of the claim, while information is readily available. Teresta v. City of New York, 304 N.Y. 440, 444, 108 N.E.2d 397, 398; Brown v. Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 N.Y. 484, 104 N.E.2d 866, 34 A.L.R.2d 720; Figueroa v. City of New York, 279 App.Div. 771, 109 N.Y.S.2d 126.

The supplemental affidavit of Malcolm Christian indicates that an account of this accident was published in the Evening Telegram on or about November 30, 1954, which paper was published in the Village of Herkimer, and consequently, public notice of the accident was made...