Martinez v. New York Transit Authority
| Decision Date | 18 November 1969 |
| Citation | 305 N.Y.S.2d 34,33 A.D.2d 669 |
| Parties | Marco MARTINEZ and Miguel Martinez, Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. L. Fleischer, for plaintiffs-respondents.
A. Satran, Brooklyn, for defendant-appellant.
Before CAPOZZOLI, Justice Presiding, and McGIVERN, MARKEWICH, McNALLY and STEUER, JJ.
Order entered March 25, 1969, granting leave to file notices of claim nune pro tunc unanimously reversed on the law and the facts and leave denied with $30 costs and disbursements to the appellant.
On September 20, 1968. claimants suffered personal injuries as the result of an alleged assault by a bus driver. Notices of claim were filed on December 20, 1968, concededly one day too late (Public Authorities Law § 1212; General Municipal Law § 50--e). No general discretion is vested in the court to extend the time for serving a notice of claim, and discretion may only be exercised where the statutory conditions are shown to exist (Matter of White v. City of New York, 285 App.Div. 69, 135 N.Y.S.2d 692; Matter of Matrisciano v. City of New York, 281 App.Div. 1046, 121 N.Y.S.2d 772). So the fact that a service was only one day beyond the 90-day period is of no moment (Matter of Core v. New York City Transit Authority, 26 A.D.2d 781, 273 N.Y.S.2d 1012; Matter of O'Neil, Jr. v. Manhattan and Bronx Surface Transit Operating Authority, 23 A.D.2d 488, 255 N.Y.S.2d 903; Matter of Bloom v. New York City Transit Authority, 19 A.D.2d 521, 240 N.Y.S.2d 124). There was no showing that plaintiffs were physically or mentally incapacitated from serving the required notices. In fact, the contrary was shown. Plaintiffs consulted an attorney well within the period and notices were drawn by him. For no revealed reason plaintiffs were dilatory in executing these claims but still did so some three days prior to the expiration date. They were not, however, served or filed, due to the attorney's being otherwise occupied. This constitutes no ground for extension (cf. Thompson v. City of New York, 24 A.D.2d 427, 260 N.Y.S.2d 667).
To continue reading
Request your trial
-
Montez v. Metropolitan Transp. Authority
...permit the exercise of such discretion, the statutory conditions for extension of time not being present. (Martinez v. New York City Transit Authority, 33 A.D.2d 669, 305 N.Y.S.2d 34; General Municipal Law, § Moreover, the notice of claim which was served solely on the Authority, was direct......
-
Adkins v. City of New York
...case. The Court is not vested with general discretion to extend the time for service of a notice of claim (Martinez v. New York City Transit Authority, 33 A.D.2d 669, 305 N.Y.S.2d 34). On this record, we must conclude, therefore, that the notice of claim was not timely served and the compla......
-
Kooleraire Service & Installation Corp. v. Board of Ed. of City of New York
... ... upon their omission to do the acts they had the power to do in order to perfect the authority they assumed to exercise are not favored when invoked against innocent parties dealing with them in ... ...
-
Pugh v. Board of Ed. Central Dist. No. 1--Fayetteville-Manlius School Dist.
...claim and therefore the fact that service was only one day beyond the requisite period is of no consequence (Martinez v. New York City Tr. Auth., 33 A.D.2d 669, 305 N.Y.S.2d 34). Discretion is only permitted in those cases under the statute (Martinez v. New York City Tr. Auth., Supra; Matte......