Millard v. Lewis
| Decision Date | 25 March 1959 |
| Citation | 185 N.Y.S.2d 708,17 Misc.2d 698 |
| Parties | Kenneth Arthur MILLARD, an infant by Roger P. Millard, his Guardian ad litem, Plaintiff, v. Charles A. LEWIS, Helene Bacher, Mark Roe, Harold Wood, Gary Stone, as the Board of Education of Central School District of Washingtonville, Orange County, New York, and Marion Edwards, Defendants. |
| Court | New York Supreme Court |
Arthur O. Mahary, Jr., Newburgh (Silas B. Axtell and Charles A. Ellis, New York City, of counsel), for plaintiff.
Watts, Oakes & VanderVoort, Middletown , for defendants. SAMUEL W. EAGER, Justice.
This is a motion by the defendants to dismiss the complaint for insufficiency on the face thereof. The action is one to recover for injuries sustained by a school boy through the alleged negligent operation of a school bus. The action is against the Board of Education and the driver of the bus. The accident occurred on October 24, 1952, and the action was not commenced until upwards of two years thereafter. The complaint does not allege the service of a written notice of claim as required by the provisions of the General Municipal Law, § 50-e.
The plaintiff claims waiver by the Board of Education of the statutory requirements re service of notice of claim. It is true that a municipality, upon receiving in some form or manner a written notice of claim within ninety days of an accident, may waive irregularities in the manner of service thereof or with respect to the contents or verification thereof; and such a waiver may occur where the municipality retains, accepts and acts upon the claim received as if it were given in full compliance with law. See, Teresta v. City of New York, 304 N.Y. 440, 108 N.E.2d 397; Valley v. Central School District No. 1, Towns of Dryden and Graton, Tompkins County, and Harford, Cortland County, 282 App.Div. 533, 125 N.Y.S.2d 744; Bard v. Board of Education, Sup., 140 N.Y.S.2d 850.
The allegations of the complaint at bar, however, are not such as to bring this case within the ambit of these decisions.
The allegations of the complaint here are to the effect that the accident was reported to the municipality shortly after the happening thereof; that thereupon it investigated the same and that it acquired full knowledge of the facts surrounding the same within ninety days of the happening thereof; that it directed that the plaintiff be given medical care and promised to pay for the same; and that within the ninety-day period and after it and its insurer had received 'notice and medical bills', the insurer's representative came personally to the plaintiff's home, examined him, discussed the accident with him and entered into settlement negotiations with him. There is no showing, however, that any written notice of claim in any form was ever received by the defendant Board, and it does appear that the action was not commenced within one year of the date of the accident.
It is concluded that there is no showing here sufficient to establish a waiver of the statutory requirements for service of a written notice of claim within the ninety-day period. Action on the part of representatives of a municipality and of its insurer in proceeding with the investigation of an accident, in discussing and negotiating with the claimant concerning responsibility for the accident and in arranging for medical care of the claimant, conducted in the absence of the service of a written notice of claim, are not to be construed as a waiver of the statutory requirements for formal notice of claim. Clearly, a municipality and its insurer are entitled for their protection to so proceed, whether or not a written claim is filed, and such action is not so inconsistent with the right to have compliance with the statutory requirements as to be deemed to constitute an intentional relinquishment of such right. Many decisions seem to justify the holding that the allegations here do not support the claim of waiver. See, Adonnino v. Village of Mount Morris, 171...
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