O'Hara v. Sears Roebuck & Co.
| Decision Date | 09 June 1955 |
| Citation | 286 A.D. 104,142 N.Y.S.2d 465 |
| Parties | Achilles S. O'HARA, Appellant, v. SEARS ROEBUCK AND CO., and others, Defendants, Elmer G. Zimmerman and John D. Hanrahan, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Arthur E. Schulgasser and Israel Rumizen, Buffalo (Arthur E. Schulgasser, Buffalo, of counsel), for appellant.
William B. Lawless, Jr., Corp. Counsel, Buffalo, Daniel J. Lucitt, Buffalo, of counsel, for respondents.
Before McCURN, P. J., and KIMBALL, PIPER, WHEELER and VAN DUSER, JJ.
Plaintiff-appellant brought this action for false arrest and malicious prosecution against defendants-respondents Elmer G. Zimmerman and John D. Hanrahan who are police officers of the City of Buffalo. The City was not made a party to the action. The complaint had been dismissed upon the ground that no notice of claim was filed similar to that required by § 50-e of the General Municipal Law. If the action was against the City of Buffalo, such a notice would have been required under § 50-e of the General Municipal Law. Such notice would be served only upon the municipality and not upon the employee. Sandak v. Tuxedo Union School District No. 3, 1954, 308 N.Y. 226, 124 N.E.2d 295. Further, if the action were brought pursuant to §§ 50-b or 50-c of the General Municipal Law, the action could not be maintained either against the municipality or appointee unless notice of claim was filed in accordance with § 50-e of the General Municipal Law. This is so because of the express statutory requirement in $ 50-c. Kosiba v. City of Syracuse, 287 N.Y. 283, 39 N.E.2d 240; Gwydir v. Cowdell, 291 N.Y. 777, 53 N.E.2d 242; Feisthamel v. Roczen, 273 App.Div. 937, 78 N.Y.S.2d 21; Krauss v. Layman, 261 App.Div. 1026, 26 N.Y.S.2d 32. Such notice would be served only upon the municipality (Sandak v. Tuxedo Union School District, No. 3, supra). However, §§ 50-b and 50-c deal with actions involving negligent operation of vehicles and facilities of transportation. They do not relate to actions for false arrest or malicious prosecution. The latter actions are brought under the common law and there is no statutory provision whereby the municipality must save harmless or indemnify a policeman from such actions, as is the case with respect to actions encompassed within § 50-c. Thus, there is no necessity for service of notice upon the municipality as a condition precedent for an action against the police...
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Regan v. Sullivan
...one year and 90 days after the happening of the event on which the claim is based.6 For example, in O'Hara v. Sears Roebuck & Co., 286 App.Div. 104, 142 N.Y.S.2d 465 (4th Dept. 1955), the court held that in an action for false arrest and malicious prosecution brought against city police off......
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Laverne v. Corning
...for service of a notice of claim upon that municipality as long as it is not made a party to the action. O'Hara v. Sears Roebuck & Co., 286 App.Div. 104, 142 N.Y.S.2d 465, 467 (1955). In a more recent case, a similar conclusion was reached by the Appellate Division. Widger v. Central School......
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Goodwin v. Pretorius
...of cases that serve to reiterate the holdings of the Court of Appeals. The Fourth Department decisions in O'Hara v. Sears Roebuck & Co., 286 A.D. 104, 142 N.Y.S.2d 465 [4th Dept. 1955] and Cooper v. Morin, 50 A.D.2d 32, 375 N.Y.S.2d 928 [4th Dept. 1975], together with a First Department dec......
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Smith v. Helbraun
...or body corporate indemnify these individual defendants and thus no need for a notice of claim (cf. O'Hara v. Sears Roebuck & Co., 286 App.Div. 104, 105, 142 N.Y.S.2d 465 (4th Dept.)). Defendants have not pointed to any statute which grants them while acting as members of a board of educati......