Prude v. Erie County

• Decision Date: 06 March 1975
• Citation: Prude v. Erie County, 364 N.Y.S.2d 643, 47 A.D.2d 111 (N.Y. App. Div. 1975)
• Parties: Al Glover PRUDE, Appellant-Respondent, v. COUNTY OF ERIE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 643

364 N.Y.S.2d 643

47 A.D.2d 111

Al Glover PRUDE, Appellant-Respondent, v. COUNTY OF ERIE, Respondent-Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 6, 1975.

Lovallo, Matusick, Fiorella & Spadafora, Buffalo, for appellant-respondent (Charles Fiorella, Buffalo, of counsel).

O'Connor, Wilkin, Good & Lopat, Buffalo, for respondent-appellant (David W. Beyer, Buffalo, of counsel).

Before MARSH, P.J., and CARDAMONE, MAHONEY, DEL VECCHIO and WITMER, JJ.

CARDAMONE, Justice:

The claimant, Al Glover Prude, appeals from an order of Special Term which denied his motion for leave to serve a late notice of claim arising out of an incident occurring on April 25, 1973 when a radiator cover located in the Erie County Courthouse fell on claimant fracturing his left ankle.

The last day to file a notice of claim against respondent, County of Erie, was July 24, 1973. Claimant did not retain his present attorney until July 26, 1973, two days after the last day to file. The attorney promptly served a notice of motion for leave to file a late notice of claim and attached to it an affidavit of the attending physician and a letter from the Veterans Administration of the Buffalo Regional Office which stated that claimant had a permanent and total disability for schizophrenia, paranoid type. The letter further revealed that the claimant had been hospitalized several times for this disability and was presently under medication, although the Veterans Administration did rate him competent to handle the small monthly pension benefit check which he received. Special Term, upon these facts, concluded that the claimant had failed to show that his failure to file within ninety days was by reason of mental incapacity and, therefore, denied the motion to file and serve a late notice of claim. We cannot agree.

A late notice of claim may be granted at any time after ninety days and up to one year from the date of the injury, after which Special Term's discretion to ameliorate the statutorily imposed time limitation terminates (General Municipal Law, § 50--e, subd. 5). The reason for the ninety-day statute of limitations within which to file claims against municipalities is to prevent undue advantage being taken when old claims are filed of which the municipality has no notice. To permit the filing of such stale claims prejudices the municipality because it has been deprived of the opportunity to make an investigation promptly after the occurrence of the incident which gave rise to the claim. In brief, the statute is a shield which the Legislature has imposed between the public treasury and claimants. Of course when the municipality has actual notice of the claim at the time when it happens and is thus afforded an opportunity to investigate the incident, it suffers no prejudice and the need for the statutory shield as a means to protect the municipality exists in a substantially diminished degree. To permit it full use as a bar in such a case would be to countenance it as a sword in the hands of municipalities to defeat otherwise meritorious claims and to deprive claimant of his day in court. We do not believe that it was so intended.

When considering discretionary 'leave to serve a notice of claim within a reasonable time' where it is alleged that claimant 'is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified' (Gen.Mun.L. § 50--e, subd. 5), each case must be decided on its own facts (Reynolds v. Greece Central School District, 36 A.D.2d 1020, 1021, 321 N.Y.S.2d 668, 669). Two issues must be carefully analyzed, however, before determining whether the ninety-day period is a bar to filing: (1) quality of proof respecting mental incapacity; and (2) the prejudice to the municipality. Where the likelihood of prejudice is great, the proof of mental incapacity must be strong to overcome the statutory shield and vice-versa (see Matter of Driskell v. City of New York,31 A.D.2d 541, 295 N.Y.S.2d 175).

In the instant case there can be no prejudice. The notice to respondent County of Erie occurred at the time of the incident--police and an ambulance were summoned to the scene. The County filed a notice of claim against claimant respecting medical expenses it had paid on his behalf, evidencing its actual notice of the claim. Thus, while the proof of mental incapacity need not be of the most convincing quality, there still must be some proof. Respondent County of Erie, contending that there was insufficient proof of mental incapacity, placed reliance upon the fact that claimant had not had a committee or a guardian appointed. Such is not a controlling consideration. Incompetent persons are wards of the court upon whom a duty...