Davidson v. Bronx Municipal Hosp.
| Decision Date | 20 December 1984 |
| Citation | 484 N.Y.S.2d 533,473 N.E.2d 761,64 N.Y.2d 59 |
| Parties | , 473 N.E.2d 761 Arthur T. DAVIDSON, Respondent, v. BRONX MUNICIPAL HOSPITAL et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
On January 17, 1980, plaintiff's violin was allegedly stolen from his automobile which was parked in a lot owned by Bronx Municipal Hospital. Plaintiff served a summons and complaint on the New York City Health and Hospitals Corporation on January 22, 1980, a summons and complaint on the Corporation Counsel of the City of New York on January 28, 1980, and a notice of claim on the Comptroller of the City on May 5, 1980, 115 days after the theft.
Defendants moved for dismissal on the ground that plaintiff failed to comply with the statutory requirements for timely service of notices of claim prior to bringing suit. Special Term, deeming plaintiff's service of a summons and complaint upon each defendant legally sufficient to constitute a valid notice of claim, granted defendants' motion to a limited extent only. The court dismissed the action without prejudice to the institution of a new one, pursuant to CPLR 205 (subd. ), by service of a proper complaint containing the required allegation, not included in the initial complaint, that a notice of claim had been served at least 30 days earlier (General Municipal Law, § 50-i; New York City Health and Hospitals Corporation Act, § 20, subd. 1 McKinney's Unconsolidated Laws of N.Y., § 7401, subd. 1). The Appellate Division, 101 A.D.2d 1034, 475 N.Y.S.2d 792, unanimously affirmed the order of Special Term, without opinion, and granted defendants leave to appeal. We agree with defendants' argument that plaintiff's summons and complaint did not constitute a valid notice of claim, and consequently that no timely notices of claim were ever served. We therefore modify the Appellate Division order to dismiss the complaint with prejudice.
Service of a notice of claim--the contents of which are prescribed by section 50-e of the General Municipal Law and section 7401 of McKinney's Unconsolidated Laws of NY--is a condition precedent to a lawsuit against a municipal corporation. Plaintiff must not only plead in his complaint that he has served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that in that time defendants neglected to or refused to adjust or to satisfy the claim (Giblin v. Nassau County Med. Center, 61 N.Y.2d 67, 73-74, 471 N.Y.S.2d 563, 459 N.E.2d 856; General Municipal Law, § 50-i, subd. 1; McKinney's Unconsolidated Laws of N.Y., § 7401, subd. 1). Failure to comply with provisions requiring notice and presentment of claims prior to the commencement of litigation ordinarily requires dismissal (Republic of Argentina v. City of New York, 25 N.Y.2d 252, 265, 303 N.Y.S.2d 644, ...
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