Hochberg v. City of New York
| Decision Date | 29 March 1984 |
| Citation | 99 A.D.2d 1028,473 N.Y.S.2d 820 |
| Parties | Alan HOCHBERG et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E.P. Dunphy, for plaintiffs-respondents.
M. King, for defendant-appellant.
Before KUPFERMAN, J.P., and SANDLER, MILONAS and ALEXANDER, JJ.
Order of the Supreme Court, Bronx County, entered on June 24, 1983, which granted plaintiff's motion to serve a late notice of claim nunc pro tunc, is reversed on the law, the motion denied and the complaint dismissed, without costs or disbursements.
On October 23, 1980 at approximately 2:30 A.M., plaintiff was driving his taxicab on the Bruckner Expressway when it developed a flat tire near the East 149th Street exit. He halted the vehicle in the far left lane of the highway to change the tire and use an emergency telephone located closeby. When plaintiff stepped outside the taxi, it was struck from behind by another automobile, and plaintiff was purportedly injured. A police officer, responding to the accident, issued a traffic ticket to plaintiff for stopping to change a tire in violation of section 157(a) of the New York City Traffic Regulations. According to the accident report, the operator of the second vehicle, who did not receive a traffic ticket, stated that there were no lights on the taxi. Some five months after this incident, on March 24, 1981, and more than two months after the expiration of the 90-day period for service of a timely notice of claim, plaintiff served a notice of claim on defendant City of New York. Plaintiff alleged that the city had negligently failed to provide sufficient space near the emergency telephone for a motorist to park a vehicle safely.
Plaintiff served a summons and complaint upon defendant on December 23, 1981. On January 21, 1982, the year and 90-day period within which plaintiff might have sought leave to file a late notice of claim elapsed. The city answered the complaint on February 12, 1982 by denying all of the allegations contained therein. However, no objection was raised to the untimeliness of plaintiff's notice of claim. Examinations before trial were conducted in early 1983, and the city was furnished with medical reports and authorizations. It was not until March 9, 1983 that plaintiff moved for an order declaring the late notice of claim to be timely service nunc pro tunc or, alternatively, for leave to file a late notice of claim. Special Term granted the motion over the city's opposition to the extent of allowing the plaintiff to serve a late notice of claim nunc pro tunc, concluding that defendant had actual notice of the accident and would, therefore, not be prejudiced.
General Municipal Law 50-e(5) states that:
Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation.
In Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331, the Court of Appeals, in...
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