Rippe v. City of Rochester

• Decision Date: 15 April 1977
• Citation: 57 A.D.2d 723,395 N.Y.S.2d 556
• Parties: Angelina RIPPE, Respondent, v. The CITY OF ROCHESTER, New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 556

395 N.Y.S.2d 556

57 A.D.2d 723

Angelina RIPPE, Respondent, v. The CITY OF ROCHESTER, New York, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 15, 1977.

Brennan, Centner, Palermo & Blauvelt, John Clapper, III, Rochester, for appellant.

Anthony C. Noto, Rochester, for respondent.

Before MARSH, P. J., and MOULE, CARDAMONE, SIMONS and DILLON, JJ.

MEMORANDUM:

On May 21, 1975, approximately four months after slipping on a wet floor of a City of Rochester Senior Citizen Center, claimant, an elderly woman, served her notice of claim pursuant to General Municipal Law, § 50-e. Thereafter on September 23, 1975 claimant commenced the instant proceeding seeking an order declaring her letter and subsequent affidavit to be a sufficient and effective notice of claim as though filed within the 90-day period required by § 50-e(1).

The application fails to satisfy the statutory requirements of § 50-e(5) as they existed at the time of Special Term's order; however, effective September 1, 1976, that subdivision was amended to vest in the courts broader discretion to consider all relevant facts and circumstances in deciding whether to extend the time to serve a notice of claim beyond the specified 90-day period. Although the applicability of this amendment to the facts of this case was not raised below, we must take judicial notice of its passage (see, Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 115, 150 N.Y.S.2d 792, 796, 134 N.E.2d 63, 66; Souveran Fabrics Corp. v. Virginia Fibre Corp., 32 A.D.2d 753, 301 N.Y.S.2d 273; CPLR 4511) and we consider its applicability sua sponte.

The amendment to § 50-e(5) is both procedural (Application of Smalls v. New York City Health and Hospitals Corp., 55 A.D.2d 537, 389 N.Y.S.2d 372, and remedial (see, Matter of Tricou v. Town of Duanesburg, 23 A.D.2d 949, 260 N.Y.S.2d 162) in nature. Such amendments constitute exceptions to the general rule that legislative enactments are not to be given retroactive operation (Shielcrawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435). Accordingly, the amendment may be applied to this case.

Here claimant served her notice of claim within 35 days after expiration of the 90-day statutory period. In view of claimant's advanced age as well as the fact that she was hospitalized for approximately 30 days and, during the three-month period following her accident, suffered the loss of her son, we find that the filing of her notice of claim was effected within a reasonable time after the expiration of the statutory period. Additionally, defendant does not allege that it will suffer any prejudice as a result of the extension. Accordingly, the grant of this petition was a reasonable exercise of discretion.

Nor does our retrospective application of the amendment extend the time limited for commencement of an action against the City (General Municipal Law, §§ 50-e(5), 50-i(1)(c)). It is clear from the record that claimant originally moved for validation of her notice of claim within one year after her cause of action accrued. Furthermore, she properly commenced her action within one year and 90 days as specified in General Municipal Law, § 50-i(1)(c). Applying the provisions of the amendment retroactively to the date of her motion for validation of her claim, it is clear that claimant filed her notice of claim and commenced the action within the periods specified under the General Municipal Law.

Order affirmed with costs.

All concur, except MARSH, P. J., and SIMONS, J., who dissent and vote to reverse the order and deny the motion, in the following Memorandum:

On January 17, 1975 claimant was injured on the City's property. On September 23, 1975 she commenced this proceeding to compel acceptance of a late notice of claim. In her moving papers she alleges only that she was hospitalized for approximately one month after the accident and that her failure to timely file a notice of claim within 90 days resulted from this hospitalization and her grief over the death of her son. There is no evidence that she was disabled from filing a notice because of her physical or mental disability during the ninety-day period, either when she was in the hospital or after she was discharged (see General Municipal Law, § 50-e(5)(1), L.1959, ch. 814).

The members of the court are unanimous in their belief that the application fails to satisfy the statutory requirements for late filing existing at the time...