Valstrey Service Corp. v. Board of Elections, Nassau County
| Decision Date | 08 March 1957 |
| Citation | 2 N.Y.2d 413,141 N.E.2d 565,161 N.Y.S.2d 52 |
| Parties | , 141 N.E.2d 565 VALSTREY SERVICE CORPORATION, Appellant, v. BOARD OF ELECTIONS, NASSAU COUNTY, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Sidney N. Zipser, Howard E. Levitt and Bernard Bernstein, New York City, for appellant.
G. Burchard Smith, County Atty., Mineola (Theodore Velsor, East Norwich, and LeRoy G. Edwards, Mineola, of counsel), for respondents.
Valstrey Service Corporation has commenced a third-party action pursuant to section 193-a of the Civil Practice Act in order to establish the right to indemnification against the Board of Elections and the Sanitation and Water Supply Division of the County of Nassau, and against the latter's sewer contractor, to recompense it for whatever damages Valstrey may be obliged to pay to the injured plaintiff in the principal action. She appears to have been injured by stepping into a hole which may have been created by excavation for sewer purposes, while she was about to enter an election booth. Valstrey's theory of indemnification appears to be that it was at most chargeable with passive negligence, whereas the defendants in the third-party action were guilty of active negligence, being in possession and control of the property. Tipaldi v. Riverside Memorial Chapel, 273 App.Div. 414, 78 N.Y.S.2d 12, affirmed 298 N.Y. 686, 82 N.E.2d 585. The summons and complaint in the principal action were served after the lapse of more than 90 days from the date of the accident; consequently it was impossible for Valstrey to serve a verified notice of claim upon the County of Nassau within 90 days from the date when plaintiff was injured. Valstrey has applied for permission to file after the expiration of the 90-day period pursuant to section 50-e of the General Municipal Law, Consol.Laws, c. 24. Special Term and the Appellate Division have held that this section does not empower the court to extend the time of filing under these circumstances. But the Appellate Division stated at the close of its memorandum decision: 'We do not, however, on this appeal reach or determine the broader and more pertinent question whether here, in the first instance, there is any requirement for the service by appellant of a notice of claim'. (1 A.D.2d 976, 151 N.Y.S.2d 87.) Section 50-e of the General Municipal Law provides for the filing of notice of claim against public corporations 'within ninety days after the claim arises' in instances where by some other law a notice of claim is required as a condition precedent to the commencement of an action. The foundation of any requirement of file such a claim in this case would be section 52 of the County Law, Consol. Laws, c. 11, which requires that notices of claims for damage against a county 'arising at law or in equity' must be served in compliance with section 50-e of the General Municipal Law. Both of these sections contemplate the filing of such a notice after the cause of action against the county shall have arisen. The brief for the county upon this appeal concedes that Valstrey's cause of action, if any, against the county does not...
To continue reading
Request your trial
-
People ex rel. Dept. of Transportation v. Superior Court
......v. . The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; . Art FROST et al., Real Parties in ... with the injured party." (Aerojet General Corp. v. D. Zelinsky & Sons (1967) 249 Cal.App.2d 604, ... (See, e. g., Valstrey Serv. Corp. v. Board of Elections (1957) 2 ... (See, e. g., Valstrey Service Corp. v. Board of Elections, supra, 2 N.Y.2d 413, ......
-
Berlin & Jones, Inc. v. State
...claim accrue? This question has not been specifically resolved by the appellate courts. In Valstrey Serv. Corp. v. Board of Elections, 2 N.Y.2d 413, 415, 416, 161 N.Y.S.2d 52, 54, 141 N.E.2d 565, 566, it was 'The brief for the county upon this appeal concedes that Valstrey's cause of action......
-
McDermott v. City of New York
...claim may be asserted, by a third-party action, in the main case (CPLR 1007; Matter of Valstrey Serv. Corp. v. Board of Elections, Nassau County, 2 N.Y.2d 413, 416, 161 N.Y.S.2d 52, 141 N.E.2d 565; see e. g., Grant Co. v. Uneeda Doll Co., 19 A.D.2d 361, 243 N.Y.S.2d 428, affd. 15 N.Y.2d 571......
-
Boyle v. Burt
...583, 93 A.L.R.2d 1378; Royal Car Wash Co. v. Mayor and Council of Wilmington, Del., 240 A.2d 144; Valstrey Service Corp. v. Board of Elections, 2 N.Y.2d 413, 161 N.Y.S.2d 52, 141 N.E.2d 565, and Ainsworth v. Berg, 253 Wis. 438, 34 N.W.2d 790, 35 N.W.2d 911. The holding in most of these case......