Whitehead v. Centerville Fire Dist.

• Court: New York Supreme Court — Appellate Division
• Citation: Whitehead v. Centerville Fire Dist., 456 N.Y.S.2d 450, 90 A.D.2d 655 (N.Y. App. Div. 1982)
• Decision Date: 28 October 1982
• Parties: James WHITEHEAD, et al., Respondents, v. CENTERVILLE FIRE DISTRICT, Appellant.

Page 450

456 N.Y.S.2d 450

90 A.D.2d 655

James WHITEHEAD, et al., Respondents, v. CENTERVILLE FIRE DISTRICT, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 28, 1982.

John J. Quackenbush, Jr., Newburgh (Roger F. Kujawski, Goshen, of counsel), for appellant.

Schirmer, Hrdlicka & Van Benschoten, Saugerties (David Van Benschoten, Saugerties, of counsel), for respondents.

Before MAHONEY, P.J., and SWEENEY, MAIN, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered September 25, 1981 in Ulster County, which granted plaintiffs' motion for leave to file a late notice of claim pursuant to subdivision 5 of section 50-e of the General Municipal Law.

On October 28, 1980, plaintiff Christina Whitehead was seriously injured when the vehicle she was operating came into contact with defendant's fire engine, which was being driven by the captain of the fire company, as it was responding to a call for assistance. The occurrence was immediately reported by defendant to the Ulster County Fire Control. Within 90 days after the accident, defendant's insurer was made aware of the incident; plaintiffs' no-fault carrier, with whom they had filed a no-fault claim with supporting medical reports, and defendant's insurer are one and the same. Also during this period, the fire district's attorney, in a letter specifically adverting to this accident and his law partner's representation of plaintiffs in the anticipated litigation, resigned.

Because plaintiffs' counsel mistakenly believed one was unnecessary, a notice of claim was not filed. Suit was commenced in June, 1981. When defendant interposed, as an affirmative defense, plaintiffs' failure to comply with section 50-e of the General Municipal Law, permission to file a belated notice of claim was sought and obtained and this appeal followed.

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