Steele v. City of New York

• Decision Date: 06 May 1958
• Citation: 177 N.Y.S.2d 816,12 Misc.2d 605
• Parties: Application of Frederick L. STEELE for leave to serve notice of claim v. The CITY OF NEW YORK.
• Court: New York Supreme Court

Page 816

177 N.Y.S.2d 816

12 Misc.2d 605

Application of Frederick L. STEELE for leave to serve notice of claim v. The CITY OF NEW YORK.

Supreme Court, Special Term, New York County, Part I.

May 6, 1958.

Reargument Denied June 5, 1958.

Bobick & Deutsch, New York City (Murray Rosenthal, New York City, of counsel), for plaintiff.

Peter Campbell Brown, Corp. Counsel, New York City (Jacob Krasnoff, Asst. Corp. Counsel, New York City, of counsel), for defendant.

MATTHEW M. LEVY, Justice.

Section 50-e, subd. 5, of the General Municipal Law, invoked by the claimant to overcome tardy filing of his claim, requires service thereof 'within a reasonable time after the expiration' of the 90-day period specified in subdivision 1.

Whatever the situation may have been had the claimant sought to file his claim promptly after his discharge from the hospital on August 27, 1957, it is clear, on the facts presented, that the delay from that date to November 12, 1957, a period in itself of 77 days (excluding the 84 days since the cause of action arose and during which the claimant was hospitalized) was more than the reasonable time envisaged in the statute.

The claimant has completely failed to substantiate--if indeed he maintains--that the administered drugs or narcotics had in any way affected his condition so as to have prevented him from filing the notice of claim within the required time. There is no showing that his failure to serve the notice was by reason of mental or physical disability, as required by subdivision 5, but rather that it was because he was not aware of the now-claimed seriousness of his injury.

I gave the claimant extended opportunity to submit precedents supporting his position, but none was forthcoming.

The claimant's motion must be and is denied.

On Application for Leave to Reargue

The record does not warrant any change of decision, and the application for leave to reargue is denied.

The cases cited in the brief submitted by plaintiff do not cover the claim set forth in the moving papers. Plaintiff's claim as there presented was based on the operation itself and the alleged improper operative procedures of assertedly inexperienced internes and doctors at the time of the operation. Indeed, the plaintiff himself stated, in his moving affidavit, that the alleged malpractice occurred on June 4, 1957, the date of the operation. Being apparently apprised that something was wrong, it was claimed that he was assured by another doctor that his...