Travelers Indem. Co. v. City of Yonkers
| Decision Date | 14 December 1988 |
| Citation | 142 Misc.2d 334,537 N.Y.S.2d 429 |
| Parties | TRAVELERS INDEMNITY COMPANY as subrogee of Jeffrey Perlman, Plaintiff, v. The CITY OF YONKERS and Louise Dulak, Defendants. |
| Court | New York City Court |
Paul W. Pickelle, Corp. Counsel, Yonkers, for defendants.
This is a Motion by defendant to dismiss plaintiff's complaint for failure to properly serve a Notice of Claim pursuant to Section 50-e of the General Municipal Law and for failing to name the defendant, Louise Dulak, on said notice. The motion is denied.
Assuming that the Notice was served by ordinary first class mail as defendant's Exhibit "B" indicates, it would be defective pursuant to § 50-e(3)(a). In such an event, § 50-e(3)(c) sets forth the municipality's obligation and requires the City to specify the defect in the manner of service. This the City clearly failed to do. By letter dated April 13, 1987 the City returned the purportedly defective Notice of Claim but failed to specify the nature of the alleged defect. A simple statement that the (otherwise timely) Notice was not served by registered or certified mail would have satisfied the statutory requirement of § 50-e(3)(c). This is particularly relevant in the instant set of circumstances where the irregularity in service appears to have been clerical in nature or one of law office failure. The Notice sets forth the direction of service by certified or registered mail and the attorney who prepared it can only have assumed that it was so mailed. How could he or she assume that the nature of the reason of the City's rejection of the Notice was an improper mailing when the attorney's direction was for a mailing of the Notice by registered or certified mail? This is precisely what the requirement of § 50-e(3)(c) was intended for, that is to notify an offending party of the exact nature of any defect in a Notice of Claim in order to allow the party to take appropriate action to cure the defect in a timely manner.
The failure of the City to comply with the requirements of § 50-e(3)(c) estops it from asserting defective service of the Notice of Claim as a basis for the dismissal of the lawsuit. Since defendant failed to specify the alleged defect in the manner of service, the service is deemed valid in accordance with Section 50-e(3)(c).
With regard to that ground of the motion to dismiss which alleges the failure to name LOUISE DULAK as defendant, the Court is not aware of any provision in...
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