Davis v. New York City Transit Authority

Decision Date01 August 1983
PartiesGlen DAVIS, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
CourtNew York Supreme Court — Appellate Division

Richard K. Bernard, Brooklyn (Lawrence Heisler, Kenneth H. Schiffrin, John A. Murray and Mark S. Yagerman, Brooklyn, of counsel), for appellant.

Melvin Block, Brooklyn, for respondent.

Before GIBBONS, J.P., and GULOTTA, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated August 10, 1982, which denied its motion to dismiss the complaint as barred by the Statute of Limitations and granted plaintiff's cross motion to strike defendant's second affirmative defense asserting the Statute of Limitations as a bar to plaintiff's action.

Order reversed, on the law, without costs or disbursements, defendant's motion granted, plaintiff's cross motion denied, and complaint dismissed.

On May 17, 1980, plaintiff allegedly sustained serious injuries when he fell between two moving subway cars operated by defendant New York City Transit Authority. On or about December 29, 1980 plaintiff moved for leave to serve a late notice of claim upon defendant. That motion was granted on March 25, 1981 and the proposed notice of claim annexed to plaintiff's papers was deemed served. On October 1, 1981, plaintiff commenced this action by service of a summons and complaint. Defendant then moved to dismiss the complaint on the ground that under applicable statutory law, as interpreted by this court (Public Authorities Law, § 1212, subd. 2; Serravillo v. New York City Tr. Auth., 51 A.D.2d 1027, 381 N.Y.S.2d 308, affd. on mem. at App.Div. 42 N.Y.2d 918, 397 N.Y.S.2d 1006, 366 N.E.2d 1360), a one year and 120 day Statute of Limitations governs tort actions against defendant New York City Transit Authority and that, therefore, the Statute of Limitations had expired on September 14, 1981 prior to the commencement of this action.

Plaintiff cross-moved to strike defendant's second affirmative defense which asserted the Statute of Limitations as a bar to his action. Plaintiff contended that the period within which the action must be commenced is tolled under the provisions of CPLR 204 (subd. [a] ) during the pendency of the application for leave to serve a late notice of claim and that, therefore, plaintiff had until December 9, 1981 to commence his action. Special Term agreed with plaintiff and, citing Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361, denied defendant's motion to dismiss the complaint and granted plaintiff's cross motion to strike the affirmative defense of the Statute of Limitations from its answer.

Recently, in Giblin v. Nassau County Med. Center, 95 A.D.2d 795, 796, 463 N.Y.S.2d 512 [2d Dept., 1983], this court wrote:

"Prior to the 1976 amendment to subdivision five of section 50-e of the General Municipal Law, that section provided that an application for leave to serve a late notice 'shall be made prior to the commencement of an action to enforce the claim' (see General Municipal Law, section 50-e, former subd. 5). Under the prior law, the Court of Appeals ruled that since a plaintiff could not bring an action until leave was obtained, there was, in effect, a statutory stay which invoked the toll provision of CPLR 204 (subd. [a] ) (Barchet v. New York City Tr. Auth. 20 N.Y.2d 1 [281 N.Y.S.2d 289, 228 N.E.2d 361] ). This toll was justified on the ground that since plaintiff's ability to sue depended upon an action by an entity outside of his control, it would be unjust to extinguish the right to sue based on delay by that external body (Santaniello v. De Francisco, 74 Misc.2d 229, 232-233 affd. 44 A.D.2d 831 ).

"However, the 1976 amendment to section 50-e of the General Municipal Law changed the underlying basis of the Barchet decision by providing: '[a]n application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation' (L.1976, ch. 745, § 2). Since the plaintiff could have brought his action either before or at the same time as his application for leave to serve a late notice of claim, or even during the pendency of the application (see Pierson v. City of New York, 56 N.Y.2d 950 [453 N.Y.S.2d 615, 439 N.E.2d 331]; Corey v. County of Rensselaer, 88 A.D.2d 1104 , mot. for lv. to app. den. 57 N.Y.2d 602 ; but see Colantuono v. Valley Cent. School Dist., 90 Misc.2d 918 [396 N.Y.S.2d 590] ), there was no statutory stay (Corey v. County of Rensselaer, supra), and the Barchet rule no longer applies."

That holding is controlling in this case. Accordingly, the complaint should be dismissed as untimely.

GIBBONS, J.P., and GULOTTA and NIEHOFF, JJ., concur.

O'CONNOR, J., concurs in the result, with the following memorandum.

On constraint of Giblin v. Nassau County Med. Center, 95 A.D.2d 795, 463 N.Y.S.2d 512 [2d Dept. 1983], I vote to reverse the order under review.

Special Term ruled that the running of the period of limitation was tolled by subdivision (a) of CPLR 204 during the pendency of plaintiff's application for leave to serve a late notice of claim pursuant to subdivision 5 of section 50-e of the General Municipal Law.

Subdivision 4 of section 1212 of the Public Authorities Law clearly requires that a notice of claim be served in compliance with section 50-e of the General Municipal Law as a condition precedent to commencement of a tort action against the New York City Transit Authority, stating in relevant part:

"No action shall be maintained against the authority * * * on account of * * * negligence * * * unless it shall appear by and as an allegation in the complaint that at least thirty days have elapsed since the service of [a] notice [of claim]".

Plaintiff properly points out that, in construing this provision in identical circumstances, the Court of Appeals ruled that it amounted to a condition precedent to commencement of an action and therefore operated as a stay pursuant to subdivision (a) of CPLR 204 (Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361).

Defendant argues that the Legislature, by recent amendment to section 50-e, has now authorized claimants to commence their actions prior to making applications for leave to serve late notices of claim.

Defendant bases its argument on the language of a new final paragraph of subdivision 5 of section 50-e, which states:

"An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action".

Defendant infers from this language that the Legislature intended to work a substantive change in the operation of section 50-e, which by the terms of paragraph (a) of subdivision 1 thereof, governs "any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation" (emphasis supplied). The legislative history, however, is clearly to the contrary. The Judicial Conference, in recommending this addition enacted by the Legislature by section 2 of chapter 745 of the Laws of 1976, described the operation of section 50-e prior to its amendment as follows:

"The harshness of the law is relieved to some extent by a provision that authorizes the court to permit a late filing of the claim if the person under disability, and by reason of his disability, fails to serve a timely notice and if application for an extension of time is made within a reasonable time, * * *and before commencement of an action to enforce the claim (subd. 5)" (Twenty-first Ann Report of NY Judicial Conference, 1976, p 286, emphasis supplied).

Describing the operation of section 50-e upon addition of the recommended language to subdivision 5, the report of the Judicial Conference concluded (p. 303):

"Furthermore, the statute of limitations is tolled under the provisions of CPLR 204(a) during the pendency of a proceeding to obtain leave to file a late notice. See Barchet v. New York City Transit Authority, 20 N.Y.2d 1 [281 N.Y.S.2d 289, 228 N.E.2d 361] (1967). See also Amex Asphalt Corp. v. City of New York, 263 App.Div. 968 (2d Dept. 1942) affd. 288 N.Y. 721 (1942)."

Does not the case at bar fall squarely within the Judicial Conference's recommendation that a claimant's pending application for leave to file a late notice of claim tolls the running of the period of limitation? Why reiterate the Barchet rule if the Judicial Conference was simultaneously undermining the rationale in Barchet by authorizing a claimant to commence his action prior to service of the late notice of claim? I conclude that the notice of claim specified by section 50-e remains a condition precedent pursuant to the language of section 1212 of the Public Authorities Law and paragraph (a) of subdivision 1 of section 50-e of the General Municipal Law.

The supporting study for the Judicial Conference's recommendation (Twenty-first Ann Report of N.Y. Judicial Conference, 1976, p. 358, et seq.) explained that the change was merely to prevent hardship for claimants who inadvertently commenced actions prior to service of the notices of claim:

"A word * * * may be in order as to the requirement in present subdivision 5 that application for leave to file a late notice must be made prior to the commencement of an action to enforce the claim. This requirement is frequently adverted to by the courts [citing Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 356 N.Y.S.2d 553, 313 N.E.2d 29; Weed v. County of Nassau, 34 N.Y.2d 723, 357 N.Y.S.2d 493, 313 N.E.2d 787; Joseph v. McVeigh, 285 App.Div. 386, 137 N.Y.S.2d 577, affd. 309 N.Y. 877, 131 N.E.2d 289], but it is not always enforced [citing Matter of Natoli v. Board of Educ. of City of Norwich, 277 App.Div. 915, 98 N.Y.S.2d 540 affd. ...

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2 cases
  • Treanor v. Metropolitan Transp. Authority
    • United States
    • U.S. District Court — Southern District of New York
    • 22 Diciembre 2005
    ...by the case law and rejects defendants' interpretation of § 1212."). 64. See Davis v. New York City Transit Auth., 96 A.D.2d 819, 465 N.Y.S.2d 567, 571 & n. 2 (2d Dep't 1983) (O'Connor, J., concurring), rev'd on other grounds sub nom., Giblin v. Nassau County Med. Ctr., 61 N.Y.2d 67, 471 N.......
  • Giblin v. Nassau County Medical Center
    • United States
    • New York Court of Appeals Court of Appeals
    • 17 Enero 1984
    ...denied the motion to dismiss, and granted the cross motion relying on Barchet. The Appellate Division, Second Department, 96 A.D.2d 819, 465 N.Y.S.2d 567, reversed, finding its prior decision in Giblin to be dispositive. Justice O'Connor concurred on constraint of Giblin but urged that the ......

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