Zeitler v. City of Rochester
| Decision Date | 15 May 1969 |
| Citation | 32 A.D.2d 728,302 N.Y.S.2d 207 |
| Parties | Emma N. ZEITLER, Appellant, v. The CITY OF ROCHESTER, Gaylord Louth and Leo Unger, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Johnson, Reif & Mullan, Thos. F. Farrell, Rochester, for appellant.
Robert A. Feldman, Melvin Bressler, Rochester, for respondents.
Before GOLDMAN, P.J., and WITMER, GABRIELLI, MOULE and BASTOW, JJ.
The statute (General Municipal Law § 50-i(1)(c)) provides that an action such as this must be commenced within 'one year and ninety days after the happening of the event upon which the claim is based.' The pertinent date of the event herein was January 23, 1966. The summons and complaint were timely served (April 17, 1967) upon the individual defendant but it is not disputed that service on the city of April 25, 1967 was two days late.
Normally such late service upon the municipality would not be fatal because another statute (CPLR 203(b)) provides in substance that timely service upon any one of two or more defendants, who are 'united in interest' as to a claim, permanently deprives all codefendants of the defense of the statute of limitations (1 Weinstein, Korn & Miller, N.Y.Civ.Prac. 203.05). The defendants are clearly 'united in interest' by reason of the city's alleged vicarious liability based on an employer-employee relationship (Ibid. 203.06, pp. 2--45, 2--46 and cases there cited).
The city contends, however, that section 50-i is here controlling because of the further provision in subdivision 2 thereof that the time limitation (one year and 90 days) for commencement of the action 'shall be applicable notwithstanding any inconsistent provisions of law, general, special or local * * *.' This section was added by chapter 788 of the Laws of 1959 as the result of a study by the Joint Legislative Committee on Tort Liability. (Cf. Erickson v. Town of Henderson,30 A.D.2d 282, 291 N.Y.S.2d 403). The evil sought to be remedied was thus stated by the Committee: (N.Y.Leg.Doc., 1959 No. 36, p. 21).
It, accordingly, has been held that statutory stays pursuant to CPLR 204(a) (formerly C.P.A. § 24) theretofore applied by the courts in actions involving claims of municipal liability for tort have been eliminated by the new provisions of section 50-i of General Municipal Law. (Joiner v. City of New York, 26 A.D.2d 840, 274 N.Y.S.2d 362).
We find no legislative intent, however, that the provision in ...
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