Salvaggio v. Western Regional Off-Track Betting Corp., OFF-TRACK

• Decision Date: 15 April 1994
• Docket Number: OFF-TRACK
• Citation: 612 N.Y.S.2d 94,203 A.D.2d 938
• Parties: Virginia SALVAGGIO and Alphonse Salvaggio, Appellants, v. WESTERN REGIONALBETTING CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 94

612 N.Y.S.2d 94

203 A.D.2d 938

Virginia SALVAGGIO and Alphonse Salvaggio, Appellants, v. WESTERN REGIONAL OFF-TRACK BETTING CORPORATION, Respondent.

Supreme Court, Appellate Division Fourth Department.

April 15, 1994.

Cerulli & Massare (Edward J. Massare, of counsel), by Matthew Lembke, Rochester, for appellants.

Damon & Morey (Michael J. Willett, of counsel), Buffalo, for respondent.

Before DENMAN, P.J., and BALIO, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

General Municipal Law § 50-e(1)(a) states that the provisions of section 50-e apply "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law". Moreover, the legislative intent in enacting section 50-e was to provide a single uniform procedure governing the filing of notices of claim against all public corporations (see, Adkins v. City of New York, 43 N.Y.2d 346, 350, 401 N.Y.S.2d 469, 372 N.E.2d 311; Guillan v. Triborough Bridge & Tunnel Auth., 202 A.D.2d 472, 609 N.Y.S.2d 38; Buduson v. Curtis, 285 App.Div. 517, 139 N.Y.S.2d 392). Given the clear and unequivocal language of General Municipal Law § 50-e(1)(a), we hold that subdivision (5) of that section, which authorizes a court to permit the late filing of a notice of claim, applies to a tort claim asserted against Western Regional Off-Track Betting Corporation, a public corporation as defined by section 66 of the General Construction Law (see, Burke v. Capital Dist. Regional Off-Track Betting Corp., 137 Misc.2d 448, 521 N.Y.S.2d 205; cf., Broadmeadow Lanes v. Catskill Regional Off-Track Betting Corp., 151 A.D.2d 631, 543 N.Y.S.2d 91, lv. denied 75 N.Y.2d 707, 554 N.Y.S.2d 476, 553 N.E.2d 1024). Thus, Supreme Court erred in concluding that section 50-e of the General Municipal Law did not apply to claims against defendant. Although Supreme Court did not consider whether the application should be granted, in the interest of judicial economy, we consider the merits of this application. Defendant had notice of the essential facts constituting the claim and commenced an investigation at the scene of the accident. Defendant does not assert that it would be prejudiced by the delay in filing a notice of claim. Although the movants have not demonstrated a strong excuse for their delay in filing, the presence or absence of any one of the numerous relevant factors the court must consider...