Cohen v. Pearl River Union Free School Dist.

• Decision Date: 18 November 1980
• Citation: 414 N.E.2d 639,434 N.Y.S.2d 138,51 N.Y.2d 256
• Parties: , 414 N.E.2d 639 David L. COHEN, an Infant, by His Father, Alan Cohen, Appellant et al., Petitioner, v. PEARL RIVER UNION FREE SCHOOL DISTRICT et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 138

434 N.Y.S.2d 138

51 N.Y.2d 256, 414 N.E.2d 639

David L. COHEN, an Infant, by His Father, Alan Cohen Appellant et al., Petitioner, v. PEARL RIVER UNION FREE SCHOOL DISTRICT et al., Respondents.

Court of Appeals of New York.

Nov. 18, 1980.

Gerald S. Jacobs, Mineola, for appellant.

O'Neil Kelly, Peekskill, for respondents.

OPINION OF THE COURT

GABRIELLI, Judge.

Where notice of claim has not been served within the 90-day period specified in section 50-e (subd. 1) of the General Municipal Law, an individual possessing a potential tort claim against a public corporation may apply to the court pursuant to section 50-e (subd. 5) for an extension of the time within which to serve such notice upon the defendant. As amended in 1976 (L.1976, ch. 745, § 2), the statute provides that, "(t)he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation". ¹ Section 50-i (subd. 1, par. (c)) of the General Municipal Law, which limits the time for bringing an action against a public corporation to "one year and ninety days after the happening of the event upon which the claim is based", has generally been regarded as a Statute of Limitations subject to the tolls for infancy and insanity provided in CPLR 208 (Sadler v. Horvath, 44 A.D.2d 905, 357 N.Y.S.2d 558; Matter of Hurd v. County of Allegany, 39 A.D.2d 499, 502, 336 N.Y.S.2d 952; Corbett v. Fayetteville-Manlius Cent. School Dist., 34 A.D.2d 379, 311 N.Y.S.2d 540; 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; see Matter of Beary v. City of Rye, 44 N.Y.2d 398, 408, 406 N.Y.S.2d 9, 377 N.E.2d 453; see, also, Zeitler v. City of Rochester, 32 A.D.2d 728, 302 N.Y.S.2d 207; cf. Russo v. City of New York, 258 N.Y. 344, 179 N.E. 762). Today we hold that the period specified in the amended version of section 50-e (subd. 5) during which a court may authorize service of a late notice of claim is completely coextensive with the time limited for commencing an action against a public corporation and is therefore similarly subject to the tolling provisions of CPLR 208.

The infant petitioner in this case, Daniel Cohen, sustained an injury to his foot while he was participating in a junior varsity soccer game played on the grounds of the Pearl River High School. The accident, which occurred on September 30, 1975, was allegedly caused by a "hidden object" protruding from the ground. The infant took no steps to recover damages for his injury until December 5, 1977, when his father, acting for himself and in his son's behalf, made application for judicial leave to serve a late notice of claim upon both the Pearl River Union Free School District and the Orangetown Central School District, the home school district of his infant son. The Orangetown School District did not oppose the application, but the Pearl River School District did object, arguing that it had been prejudiced by petitioner's procrastination in providing it with notice and that, in any event, the time during which permission to serve late notice of claim could be granted had long since expired.

Although Special Term initially denied the application, it ultimately granted the requested relief upon reconsideration of its earlier decision in light of our holding in Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, supra ). ² After concluding that our decision in Beary authorized retroactive application of the amended version of section 50-e (subd. 5) to petitioner's case, Special Term went on to hold that the application for leave to serve late notice was not untimely, since the time for applying for such leave had been tolled during the injured party's infancy in accordance with CPLR 208. The Appellate Division, however, reversed the order of Special Term, expressing its view that nothing in the legislative history or the language of section 50-e (subd. 5) as amended warranted the importation of the CPLR 208 toll for infancy into the limitations period specified in that statute. We disagree.

As a threshold matter, it is necessary for us to consider whether the expanded limitations period contained in the amendments to section 50-e (subd. 5) may be applied retroactively to petitioner's claim, which arose some 11 1/2 months before the amendment's effective date of September 1, 1976. Under the former version of section 50-e (subd. 5) (L.1945, ch. 694, § 1, as amd. by L.1959, ch. 814, § 1), the application for permission to serve late notice of claim was required to be made within "one year after the happening of the event upon which the claim is based", and it was well established that the tolls and extensions contained in CPLR article 2 were inapplicable to this limitations period (see Matter of Martin v. School Bd. of Union Free Dist. No. 28, 301 N.Y. 233, 93 N.E.2d 655; Russo v. City of New York, 258 N.Y. 344, 348-349, 159 N.E. 762, supra; Winter v. City of Niagara Falls, 190 N.Y. 198, 82 N.E. 1101). Thus, unless the expanded limitations period contained in the amended version of section 50-e (subd. 5) is deemed to be applicable to petitioner's claim, the claim would have to be treated as untimely, since petitioner failed to make application for leave to serve late notice within the one-year period specified in the predecessor statute.

In Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, supra, we were called upon to consider whether the liberalized criteria for granting leave to serve late notice should be applied retroactively, and, in that connection, we held that the provisions of the 1976 amendment were available to individuals whose right to make application for such leave was still viable under the former one-year limitations period on the date the amendment became effective. We refused in Beary, however, to accord full retroactive effect to the expanded limitations period contained in the amendment to section 50-e (subd. 5), because we were concerned that "(t)he result of treating the amendment as to time as though it were retrospective would * * * be to open the door to an unknown number of claims the defense to which is unprepared and unpreparable" (44 N.Y.2d, at pp. 413-414, 406 N.Y.S.2d 9, 377 N.E.2d 453).

Nevertheless, our refusal in Beary to accord full retroactive effect to the time provisions in the amendment cannot be considered dispositive of the retroactivity problem in the instant case. In Beary, we were faced with, among other things, the potential claims of two infants whose injuries had been sustained in 1969 and 1973 respectively (Rodriguez v. City of New York, 54 A.D.2d 692, 387 N.Y.S.2d 283; affd. 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Pauletti v. Freeport Union Free School Dist. No. 9, 59 A.D.2d 556, 397 N.Y.S.2d 146, affd. 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453). It was in connection with these situations that we expressed our concern that full retroactive application of the portion of the 1976 amendment "which replaces the one-year period with one measured only by the Statute of Limitations that otherwise would be applicable would make it possible for infants to newly file claims which had their genesis in events occurring up to 18 years earlier (see CPLR 208)" (44 N.Y.2d, at p. 413, 406 N.Y.S.2d 9, 377 N.E.2d 453). It is thus evident that our holding in Beary was addressed only to the question whether the time provisions in the amendment should be given unlimited retroactive effect in light of the very real possibility that unlimited retroactivity would lead to an extended retrospective tolling of the time during which application for leave to serve late notice must be made. We did not there consider, however, a situation such as the present one, where the claim was less than one year old at the time the amendment took effect and was therefore still viable under the one-year limitations period specified in the repealed version of section 50-e (subd. 5), although no application for leave to serve late notice was actually made within the one-year period. In such a case, there is no need to invoke the expanded time period specified in the amended version of section 50-e (subd. 5) in order to revive a claim that "had passed beyond the power of judicial recall" by the time the amendment became effective (44 N.Y.2d, at p. 413, 406 N.Y.S.2d 9, 377 N.E.2d 453). Instead, the only question is whether the claimant, whose potential claim was still alive on the amendment's effective date, should be permitted to benefit from the liberalized time provisions in the amendment so that the outer limit of his time for applying for leave to serve late notice is measured by the limitations period set forth in the new version of section 50-e (subd. 5) rather than by the more restrictive period described in the predecessor statute.

We conclude that an individual in petitioner's position, whose right to apply for leave to serve late notice of claim had not yet expired on the date the amendment became effective, should be afforded the benefits of the new time provisions in section 50-e (subd. 5) when he makes application to the court for such leave. No serious prejudice to the potentially liable public corporation would result from such a limited retrospective application of the amendment, since the public corporation was already at risk with respect to these claims on the amendment's effective date pursuant to the former version of section 50-e (subd. 5). There is thus no danger of "the revival of ancient claims as distinguished from the mere continuance of ones that have not finally expired" (44 N.Y.2d, at p. 414), and the rationale by which we excluded stale claims from the amendment's remedial reach in Beary would have no application. In short, we can perceive no inconsistency with the legislative purpose underlying the notice of claim provisions in affording the...