Forero v. Town of Tuxedo

• Decision Date: 12 April 1976
• Citation: 382 N.Y.S.2d 328,51 A.D.2d 443
• Parties: Blanca FORERO, as administratrix, etc., Appellant, v. TOWN OF TUXEDO et al., Defendants, and Orange County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 328

382 N.Y.S.2d 328

51 A.D.2d 443

Blanca FORERO, as administratrix, etc., Appellant, v. TOWN OF TUXEDO et al., Defendants, and Orange County, Respondent.

Supreme Court, Appellate Division, Second Department.

April 12, 1976.

Lurie & Nicholson, New York City (Stevens G. Nicholson, Jr., New York City, of counsel), for appellant.

King, Edwards & O'Connor, White Plains (Rocco Conte, White Plains, of counsel), for respondent.

Before HOPKINS, Acting P.J., and COHALAN, DAMIANI, CHRIST and TITONE, JJ.

COHALAN, Justice.

At issue on this appeal is the applicability of section 139 of the Highway Law with respect to the time of commencement of suit in a wrongful death action against a county.

The chronology of events discloses that plaintiff's intestate died on October 3, 1972 as the result of an automobile accident on that day. Her death occurred on a highway maintained by the County of Orange. Limited letters of administration were issued on December 19, 1973. Service of a 90-day notice, in purported compliance with section 50--e of the General Municipal Law (GML), was effected on February 1, 1974. Thereafter, and within one year from the latter date, to wit, on October 9, 1974, a summons and complaint were served upon the county. This was two years and six days after the fatal accident which spawned the action.

On a motion to dismiss (CPLR 3211) after issue was joined, Special Term dismissed the complaint as against Orange County on the ground of untimeliness (GML, § 50--i), citing Erickson v. Town of Henderson, 30 A.D.2d 282, 291 N.Y.S.2d 403. As we read that case, however, the motion to dismiss therein was made under section 67 of the Town Law and has no applicability at bar.

At Special Term, and on this appeal, plaintiff has invoked the provisions of section 139 of the Highway Law in support of her claim of timely and proper service. As pertinent, that statute reads:

'When, by law, a county has charge of the repair or maintenance of a * * * highway, * * * the county shall be liable for injuries to person or property sustained in consequence of such * * * highway * * * being defective, * * * dangerous or obstructed existing because of the negligence of the county, its officers, agents or servants. A civil action may be maintained against the county to recover damages for any such injury; but the county shall not be liable in such action unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law, and unless the action is commenced within one year from the date of service of the notice, but no such action shall be commenced upon such claim until the expiration of three months after the service of such notice.'

As demonstrated in the chronology of events, the section was literally complied with.

Section 139, enacted in 1950 (L.1950, ch. 640), replaced section 6 of the County Law, which was enacted in 1917 (L.1917, ch. 578). Section 6 required that service be effected upon a county within one year after the happening of the accident. In construing section 6, the Court of Appeals, in Hawkins v. County of Oneida, 297 N.Y. 393, 395, 79 N.E.2d 458, 459 noted:

'An action against a county based upon a claim for damages arising out of a defective condition of a highway owing to the negligence of the county or its officers, including an action for wrongfully causing death, may be brought only under section 6 of the County Law.'

Here, compliance was had with section 50--e of the GML in the light of the construction placed on it in wrongful death actions, namely that the claim does not arise until the appointment of an administrator (see Joseph v. McVeigh, 285 App.Div. 386, 137 N.Y.S.2d 577, affd., 309 N.Y. 877, 131 N.E.2d 289; Buduson v. Curtis, 285 App.Div. 517, 139 N.Y.S.2d 392, affd., 309 N.Y. 879, 131 N.E.2d 290; Crapo v. City of Syracuse, 183 N.Y. 395, 76 N.E. 465; Matter of Sellars v. Motor Vehicle Acc. Ind. Corp., 20 A.D.2d 350, 353, 246 N.Y.S.2d 937, 940; Matter of Mulligan v. County of Westchester, 272 App.Div. 927, 71 N.Y.S.2d 152; Santaniello v. De Francisco, 73 Misc.2d 934, 342 N.Y.S.2d 916).

In addition to section 139 of the Highway Law, the plaintiff also points to CPLR 204 (subd. (a)) to obtain the benefit of the extra period beyond the two-year term before service was effected.

The defendant county stands four-square on section 50--i of the GML for its defense. It points out that section 50--i came into being in 1959 (L.1959, ch. 788). It reads, in pertinent part:

'1. No action or special proceeding shall be prosecuted or maintained against a * * * county * * * for personal injury or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such * * * county * * * or of any officer, agent or employee thereof, unless * * * (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.'

Subdivision 2 adds what the county considers to be the Coup de grace to plaintiff's contention. It reads:

'This section shall be applicable notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any city charter.'

It may be of some significance that no mention, as such, of wrongful death appears in the statute.

At the time section 50--i came into being, the legislative committee which recommended its enactment was well aware of section 139 and of the Hawkins case (supra). (See Fifth Report of the Joint Legislative Committee on Municipal Tort Liability (March 23, 1959) (N.Y.Legis.Doc., 1959, No. 36.) As also applicable, a note to chapter 788 of the Laws of 1959 states:

'This act is recommended by the Joint Legislative Committee on Municipal Tort Liability. Its purposes is (sic) to clarify and make uniform existing provisions with respect to the filing of claims and the commencement of actions against municipal corporations. (1) Filing of a notice of claim has been required since enactment of § 50--e of the General Municipal Law by L.1945, ch. 694. (2) A one year limitation upon commencement of actions now exists as to all municipalities. However, the one year period runs in some laws from the happening of the event upon which the claim is based, in others from the accrual of the cause of action. The latter phrase has uniformly been construed to mean after the happening of the event (Christian v. Village of Herkimer, 4th Dept., 1958, 5 A.D.2d 62, 169 N.Y.S.2d 81), but the variation in terminology in the absence of definitive decision has led to uncertainty and litigation. This act eliminates that uncertainty by expressly providing that the period runs from the happening of the event. The tolling provisions of section 24 of the...