Frink v. Town of Amenia

• Decision Date: 21 September 1977
• Citation: 398 N.Y.S.2d 331,91 Misc.2d 491
• Parties: Eugene F. FRINK, Plaintiff, v. TOWN OF AMENIA, Defendant.
• Court: New York County Court

Page 331

398 N.Y.S.2d 331

91 Misc.2d 491

Eugene F. FRINK, Plaintiff, v. TOWN OF AMENIA, Defendant.

County Court, Special Term, Dutchess County.

Sept. 21, 1977.

Robert J. Marvin, Rhinebeck, for plaintiff.

Bernard Kessler, Hyde Park, for defendant.

ALBERT M. ROSENBLATT, Judge.

This is a motion by the Town Board for an order dismissing the plaintiff's complaint for attorney's fees, on the ground that the plaintiff did not comply with the notice of claim requirements found in Section 65 of the Town Law.

In essence, Section 65(3) provides that no contract action may be maintained against a town unless a written verified claim is filed within six (6) months after the accrual of a cause of action.

The action at bar was commenced within the six (6) month period. The question unique to town law and almost unique to New York municipal law is whether the commencement of the action itself (by verified complaint within the six (6) month period) is tantamount to Section 65(3) notice. The Court holds that the plaintiff has satisfied the statutory condition by having started his lawsuit with the service of a verified complaint within three weeks after his bill for legal fees had been rejected.

It is undisputed that:

1. The plaintiff performed legal services in defense of certain members of the Town Board, in lawsuits commenced against them in 1969 by Ben and Marie Surico.

2. The members of the Town Board, as litigants represented by plaintiff, appeared at an examination before trial, accompanied by plaintiff himself, on August 15, 1969. From the inception to the conclusion the plaintiff appeared for the members of the Town Board and performed extensive legal services for them in a stormy and prolonged litigation marked by a plethora of procedural activity. The actions were discontinued on November 7, 1972 and January 31, 1973.

3. The plaintiff wrote to the Town Board members "pleased to inform" them that his representation resulted in the discontinuances. He enclosed his bill dated March 12, 1973.

4. The bill was refused by the Town Board by letter dated June 12, 1973; the action was commenced by verified complaint dated June 21, 1973, and served on June 27, 1973.

5. In its fourth affirmative defense the Town Board avers that the plaintiff, in the Surico actions, represented the Town Board members in an individual capacity, and that therefore the Town Board itself is not liable.

6. Neither the Town Board nor the individual members have paid for the legal services.

A chief purpose of a notice of claim statute is to acquaint the municipality with the existence of claims so that they may be investigated before proof grows stale. It enables the governmental unit to examine the claim, lest they be surprised by the initiation of a lawsuit long after meaningful inquiry and defense opportunity has deteriorated. (In Mtr. of Board of Education (Wager Corp.), 37 N.Y.2d 283, 289, 372 N.Y.S.2d 45, 49, 333 N.E.2d 353, 356.) Statutes of this kind are common at all governmental levels, throughout the land. (See, generally, 17 McQuillan, Municipal Corporations, Sec. 48.02; Salesian Society v. Ellenville, 41 N.Y.2d 521, 393 N.Y.S.2d 972, 362 N.E.2d 604). Furthermore, the power to exact compliance is a well settled and entirely acceptable premise of municipal litigation. (Stage v. Village of Owego, 39 N.Y.2d 101, 387 N.Y.S.2d 245, 355 N.E.2d 300; Cioffi v. Giannone, 56 A.D.2d 620, 391 N.Y.S.2d 675).

But where the statutory objective of notice has been fully met by the service of a verified complaint, the statute's bar would serve no legitimate purpose and would merely convert a sensible rule into a blindly technical barrier, depriving a litigant of his day in court.

Notably, Town Law Section 65(3) contains no standards as to the form of the notice of claim, save that it be verified. It then falls to the courts to measure the degree of compliance, to determine substantiality, and to interpose suitable and "worthy judicial responses" to avert a needlessly harsh result (2 Antieau, Municipal Corporation Law, Sec. 16.09). Because the statutory notice of claim requirements are in derogation of common law, they should not be so strictly construed as to foreclose plenary adjudication. (Eggleston v. Town of Chautauqua, 90 App.Div. 314, 317, 86 N.Y.S. 279, aff'd 183 N.Y. 514, 76 N.E. 1094). The rule of substantial compliance is particularly apt here, not only as a general precept in notice of claim cases (Matter of Powell v. Town of Gates, 36 A.D.2d 220, 319 N.Y.S.2d 650; McIntee v. City of Middletown, 80 App.Div. 434, 437, 81 N.Y.S. 124, 126) but because there is not, nor can there be, any claim of surprise or lack of written and sworn timely notice. Indeed, it is ironically unnecessary to go beyond the language of those courts which have held that a notice of claim need not rise to the fastidious level of a pleading, (Benedict v. Union Free School Dist., Ontario, 184 Misc. 671, 54 N.Y.S.2d 560), because, being a pleading, it has risen to precisely that level. In so doing it has, by its timing and form, eliminated any serious claim of prejudice, which, though not controlling, is relevant in considering the statutory scheme. (Soules v. City of Rochester, 10 A.D.2d 362, 199 N.Y.S.2d 966).

There is nothing directly on point under the Town Law, but the analogous provisions of General Municipal Law Section 50-e have produced one decision, Quintero v. Long Island Railroad, 31 A.D.2d 844, 298 N.Y.S.2d 109, in which it was held that the service of a complaint met the statutory requirements of a notice of claim.

The gradual erosion of the rigidity of the notice statutes has been seen in recent legislative attitudes by which General Municipal Law Section 50-e was relaxed (L.1976, ch. 745), and in kindred judicial interpretations. (e.g. Schiavone v. County of Nassau, 41 N.Y.2d 844, 393 N.Y.S.2d 701, 362 N.E.2d 252; Smalls v. New York City Health and Hospitals Corp., 55 A.D.2d 537, 389 N.Y.S.2d 372; Nolan v. County of Otsego, 55 A.D.2d 422, 391 N.Y.S.2d 15).

Absent analysis, it may appear that a ruling allowing prosecution of the instant claim would be inconsistent with early decisions of nearly a century ago, which hold the filing of a notice to be prerequisite to a litigant's right to start a lawsuit against a municipality, even though the action is commenced within the statutory period prescribed for giving the written notice. (Bauer v. City of Buffalo, 63 Hun 635, 44 N.Y.St.Rep. 814, 18 N.Y.S. 672; Mertz v. City of Brooklyn,...