Giblin v. Nassau County Medical Center

• Decision Date: 17 January 1984
• Citation: 61 N.Y.2d 67,459 N.E.2d 856,471 N.Y.S.2d 563
• Parties: , 459 N.E.2d 856 Martin J. GIBLIN, Appellant, v. NASSAU COUNTY MEDICAL CENTER et al., Respondents. Glen DAVIS, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 563

471 N.Y.S.2d 563

61 N.Y.2d 67, 459 N.E.2d 856

Martin J. GIBLIN, Appellant, v. NASSAU COUNTY MEDICAL CENTER et al., Respondents.

Glen DAVIS, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.

Court of Appeals of New York.

Jan. 17, 1984.

[61 N.Y.2d 69] Leonard M. McEvoy, New York City, for appellant in the first above-entitled action.

Edward G. McCabe, County Atty. (Kathryn Driscoll Hopkins, Deputy County Atty. of counsel), for respondents in the first above-entitled action.

Melvin Block, Brooklyn, for appellant in the second above-entitled action.

Kenneth H. Schiffrin and Richard K. Bernard, Brooklyn, for respondent in the second above-entitled action.

OPINION OF THE COURT

WACHTLER, Judge.

The common question on these two appeals is whether the Statute of Limitations for municipal tort liability is tolled when the plaintiff applies for permission to file a late notice of claim. In each case Special Term held the statute was tolled, and denied a motion to dismiss, relying on our decision in Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361. However, in each instance the Appellate Division, Second Department, reversed and dismissed the complaint holding that the Barchet decision was no longer applicable in light of a 1976 amendment to section 50-e of the General Municipal Law.

The Giblin Case

On November 16, 1980 the plaintiff, Martin Giblin, was treated at the Nassau Medical Center for an injury to his left wrist and forearm. On August 13, 1981 he applied for permission to file a late notice of claim against the county and the Medical Center. In support of the motion he alleged that the county had treated his injury as a sprain, but in June of 1981 he discovered that he had in fact suffered a fracture. On September 15, 1981 the motion was granted, and a few days later the notice of claim was filed. The summons and complaint, however, were not served until March 4, 1982.

The defendants moved to dismiss on the ground the action had not been commenced within one year and 90 days as required by section 50-i of the General Municipal Law. The Supreme Court, Nassau County, denied the motion stating: "The statute of limitations is tolled during the pendency of an application for leave to file a late notice of claim (Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361; Colantuono v. Valley School District, 90 Misc.2d 918, 396 N.Y.S.2d 590).

The Appellate Division, Second Department, 95 A.D.2d 795, 463 N.Y.S.2d 512, unanimously reversed and dismissed the complaint. The court recognized that CPLR 204 (subd. [a] ) tolls the running of the Statute of Limitations whenever there is a stay or statutory prohibition to suit, and that in the Barchet decision this statute was held to apply when an application to file a late notice of claim is pending. The court also noted that the Barchet decision was based on a statutory scheme which precluded or stayed a party from commencing an action until the notice of claim had been filed, but concluded that this decision "no longer applies" because a 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law permits the plaintiff to make the application to file a late notice after the commencement of the action (L. 1976, ch. 745, § 2). In support of this result, the court cited Corey v. County of Rensselaer, 88 A.D.2d 1104, 453 N.Y.S.2d 65, mot. for lv. to app. den. 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798.

Plaintiff has appealed as of right on the basis of the reversal.

The Davis Case

On May 17, 1980 plaintiff, Glen Davis, allegedly was seriously injured when he fell between two moving subway cars. On December 29, 1980 he applied for leave to file a late notice of claim upon the New York City Transit Authority. On March 25, 1981 the motion was granted, and plaintiff's proposed notice of claim was deemed served. Plaintiff, however, did not commence the action by serving the summons and complaint until October 1, 1981.

The defendant moved to dismiss claiming that the plaintiff had not commenced the action within one year and 120 days as required by the applicable statute (Public Authorities Law, § 1212; see, also, Serravillo v. New York City Tr. Auth., 51 A.D.2d 1027, 381 N.Y.S.2d 308, affd. on mem. below 42 N.Y.2d 918, 397 N.Y.S.2d 1006, 366 N.E.2d 1360). The defendant, therefore, contended that the Statute of Limitations had expired on September 14, 1981, approximately two weeks prior to commencement of the action. Plaintiff cross-moved to strike the affirmative defense, claiming that the Statute of Limitations was tolled from December 29, 1980 to March 25, 1981, while the application to file a late notice of claim was pending.

The Supreme Court, Kings County, 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 history of the 1976 amendment showed no legislative intent to abolish the Barchet rule. He also argued that the amendment did not alter the basic requirement that a notice of claim is a condition precedent to suit; that a party is still stayed or precluded from commencing an action until the notice is filed, and that the Statute of Limitations should therefore continue to be tolled (pursuant to CPLR 204, subd. [a] ) while an application to file a late notice of claim is pending.

This plaintiff has also appealed as of right on the basis of the reversal.

Analysis

In the Barchet case the plaintiff had failed to give the 90-day notice of claim required by the statute, but applied for permission to file a late notice before the expiration of the Statute of Limitations. The motion was granted, after the statutory period had run. At that point the notice of claim and complaint were served on the defendant. In opposition to the defendant's motion to dismiss, the plaintiff claimed she was barred by statute from commencing the action until the court granted permission to file a late notice of claim and the running of the statute should therefore be tolled pursuant to CPLR 204 (subd. [a] ). That statute states: "Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced."

We held that the Statute of Limitations was tolled from the time the plaintiff commenced the proceeding to obtain leave to file a late notice of claim until the order granting that relief went into effect. We noted (20 N.Y.2d at p. 6, 281 N.Y.S.2d 289, 228 N.E.2d 361) that once the application was made, her right to commence the action "was no longer solely within her control but was dependent upon obtaining leave of the court. She was, in effect, prohibited from commencing the action until that consent was obtained. Indeed, the statute provides that the application for leave of the court 'shall be made prior to the commencement of an action' [General Municipal Law, § 50-e, former subd. 5]. This requirement is quite similar to that which requires the plaintiff to allege that 30 days have elapsed since the notice of claim was served [Public Authorities Law, § 1212]. In neither case do the statutes specifically proscribe the prosecution of the action but in both cases they prescribe procedures which have the same effect."

The 1976 amendment, relied on by the Appellate Division, only changed one of those statutes in one respect. The Legislature revised subdivision 5 of section 50-e of the General Municipal Law by deleting the requirement that the application to file a late notice "shall be made prior to the commencement of an action", and added the following sentence at the end of the subdivision: "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 against the public corporation".

No alteration was made in the other statute cited in the Barchet decision, section 1212 of the Public Authorities Law, which still requires that the complaint allege that more than 30 days have elapsed since service of the notice of claim. (This statute is applicable in the Davis case which, like the Barchet case, involves a suit against the New York City Transit Authority.) Neither did the Legislature amend the comparable provision found in subdivision 1 of section 50-i of the General Municipal Law which in suits against a county, as in the Giblin case, provides that "[n]o action or special proceeding shall be prosecuted or maintained against a * * * county * * * for personal injury * * * unless, (a) a notice of claim shall have been made and served upon the * * * county * * * in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused".

The 1976 amendment illustrates that the Legislature was aware of the fact that complaints were sometimes served before the notice of claim, and that the lawmakers were inclined to grant some relief to the plaintiff under those circumstances. However on its face the amendment does not, as the Appellate Division concluded, expressly authorize the practice or completely eliminate the problems encountered by a plaintiff who has filed a premature complaint, so as to also dispense with the need for the Barchet rule.

By its terms, the 1976 amendment simply eliminates the obstacle which prevented a plaintiff from applying for leave to file a late notice of claim once he had commenced the action. It does not go further and dispense with the requirement that the complaint allege that the notice has been served and that more than 30 days have...