Furlo v. Cheek
| Decision Date | 29 April 1964 |
| Citation | 20 A.D.2d 939,248 N.Y.S.2d 947 |
| Parties | Marie-Elena FURLO, Appellant, v. Mina CHEEK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Layden & Layden, Leon M. Layden, Jr., Whitehall, for appellant.
Francis E. Lehner, Delmar, for respondent (John C. Mannix, of Miller & Mannix, Glens Falls, of counsel).
Before GIBSON, P. J., and HERLIHY, REYNOLDS, TAYLOR and HAMM, JJ.
On December 11, 1962, a collision occurred between an automobile operated by the plaintiff and another automobile owned by the County of Washington and operated by the defendant resulting, as alleged, in personal injuries to the plaintiff. The plaintiff did not name the County of Washington as a defendant but sued only the operator of the County's automobile. The complaint does not refer in any manner to the defendant's employment by the County. The answer of the defendant consists only of general denials. By motion dated April 29, 1963, the defendant moved for and was granted summary judgment.
Section 50-b of the General Municipal Law imposes liability on a municipality for negligent operation of a municipally owned vehicle by 'a person duly appointed by the governing board or body of the municipality, or by any board, body, commission or other officer thereof' provided that the appointee was acting in the discharge of his duties and within the scope of his employment at the time of the accident. Section 50-c of the General Municipal Law further provides: 'No action or special proceeding instituted pursuant to the provisions of section fifty-b or fifty-c of this chapter, shall be prosecuted or maintained against the municipality or appointee, unless notice of claim shall have been made and served in compliance with section fifty-c of this chapter * * *.' No notice of claim was served.
It does not appear from the face of the complaint that the sections mentioned are applicable. It does not factually appear, for instance, that the defendant was operating the municipally owned vehicle 'in the discharge of a statutory duty' or that she was 'appointed' by the County. The complaint is valid on its face and not subject to a motion to dismiss for failure to state a cause of action. (Millard v. Lewis, 17 Misc.2d 698, 185 N.Y.S.2d 708, Eager, J.) On the motion for summary judgment the defenant introduced evidence to indicate that she was a duly appointed public health nurse acting in the discharge of her duties and within the scope...
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