Soloff v. Board of Educ. of City of New York
| Decision Date | 22 November 1982 |
| Citation | 455 N.Y.S.2d 832,90 A.D.2d 829 |
| Parties | , 7 Ed. Law Rep. 975 Michael SOLOFF et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Eppinger, Reingold & Fremont, Siff & Newman, P.C., New York City (L. Kevin Sheridan and Terry D. Horner, New York City, of counsel), for appellants.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Carolyn E. Demarest and Bernard Abel, New York City, of counsel), for respondent.
Before O'CONNOR, J.P., and BRACKEN, BROWN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal (1) from an order of the Supreme Court, Richmond County, dated September 23, 1981, which granted defendant's motion for reargument of a prior order of the same court which had granted plaintiffs' motion for leave to have a previously filed notice of claim deemed timely, and, upon reargument, denied such leave and (2) as limited by their brief, from so much of an order of the same court dated February 23, 1982 as, upon granting further reargument of their motion for leave to have the notice of claim previously filed by them deemed timely, adhered to its prior determination denying such leave.
Appeal from order dated September 23, 1981 dismissed, as academic, without costs or disbursements. That order was superseded by the order dated February 23, 1982, made upon further reargument.
Order dated February 23, 1982 affirmed insofar as appealed from, without costs or disbursements.
On October 17, 1974 the infant plaintiff was allegedly injured by another student in the school yard of P.S. 22 in Staten Island. On January 16, 1975, a notice of claim was served upon the defendant Board of Education. Because January 16, 1975 was concededly the 91st day after the causes of action arose, service of the notice of claim was untimely (see General Municipal Law, § 50-e, subd. 1, par. ). On July 24, 1975 plaintiffs attended a Comptroller's hearing and the infant plaintiff was also examined by a doctor acting on behalf of the Board of Education.
On December 11, 1975, plaintiffs commenced this negligence action by service of a summons and complaint upon the board. The answer of the board, served in May, 1976, asserted as an affirmative defense that the plaintiffs had failed to serve or file a timely notice of claim. By that time, the one-year period within which leave might have been granted to file a late notice of claim under former subdivision 5 of section 50-e of the General Municipal Law had expired.
Plaintiffs' attorney had been suffering from a long-term illness and as a result he died on May 14, 1980. In July, 1980 the law firm of Eppinger, Reingold and Fremont succeeded to his practice and on November 1, 1980, over six years after the causes of action arose, it moved on plaintiffs' behalf to have the notice of claim deemed timely. Special Term granted the motion as to the infant plaintiff, and denied it as to the adult plaintiff, reasoning that "infant is not to be held to the same level of responsibility as would an adult in procuring service of his Notice of Claim against a Municipality for injuries" and that the period specified in former subdivision 5 of section 50-e was tolled by infancy pursuant to CPLR 208. Defendant moved for leave to reargue. By order dated September 23, 1981, Special Term granted reargument and thereupon denied plaintiffs' motion in all respects. Plaintiffs then moved for reargument. By order dated February 23, 1982, Special Term again granted reargument but adhered to its prior determination denying leave to serve a late notice of claim with respect to either plaintiff. We affirm.
Plaintiffs have failed to establish adequate grounds on which to invoke the doctrine of equitable estoppel. The Court of Appeals in Bender v. New York City Health & Hosps. Corp. 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561, upon which plaintiffs principally rely, enunciated the principles of this doctrine and held that "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right...
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