Camarella v. East Irondequoit Central School Board

Majority

p. 139

Bonito Camarella, an Infant by Her Parent and Natural Guardian, Louis Camarella, et al., Appellants, v. East Irondequoit Central School Board, Respondent.

Argued February 20, 1974;

decided May 8, 1974.

p. 141

John R. Davison and Richard Alan Kroll for appellants.

I. A notice of claim is timely served against a school board if served within three months of the accrual of the cause of action and such action is based on a passive act of tort. II. Plaintiffs’ request to amend a certain accident report and/or a certain letter to conform to the technical requirements of the General Municipal Law should have been granted. (Soules v. City of Rochester, 10 A D 2d 362 ; Robinson v. Board of Galway Cent. School Dist. No. 1, 1 Misc 2d 634 ; Matter of Greguski v. Town of Oyster Bay, 19 Misc 2d 763 ; Teresta v. City of New York, 304 N. Y. 440 ; Harwood v. City of Hornell, 41 Misc 2d 706 ; Matter of Kaiser v. Town of Salina, 20 A D 2d 312 .)

Homer H. Marks for respondent.

I. Plaintiff failed to prove compliance with a condition precedent to the commencement of this action. (Pugh v. Board of Educ. Cent. Dist. No. 1-Fayetteville-Manlius School Dist., 30 N Y 2d 968 ; Young v. Board of Educ., 193 Misc. 216 .) II. Plaintiff, upon a posttrial motion, cannot amend documents, not in evidence, for the purpose of completing its proof. (Chikara v. City of New York, 10 A D 2d 862 .) III. The complaint must be dismissed because plaintiff is no longer able to correct the defect in service notice of claim. (Matter of Rosenberg v. City of New York, 309 N. Y. 304 ; Spiciarich v. New York City Housing Auth., 23 A D 2d 653 ; Natoli v. Board of Educ. of City of Norwich, 303 N. Y. 646 ; Melisi v. Central School Dist. No. 1, 25 A D 2d 54 ; Matter of Brown v. Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 N. Y. 484 .) IV. Defendant is not estopped to claim late service. (Orsell v. Board of Educ. of City of Johnstown City School Dist., 31 A D 2d 585 ; Miller v. County of Putnam, 32 A D 2d 827 ; Matter of Johnson v. Board of Educ. of City of Rochester, 33 A D 2d 647 .)

Memorandum. The order of the Appellate Division should be affirmed, with costs and disbursements awarded to the appellants. In view of the highly unusual procedural posture in which this appeal comes to us, particularly the fact that the appellants may have been misled by respondent’s failure clearly

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to assert the timeliness issue until after the tort claim had been tried on the merits, in the exercise of our discretion, we deem it appropriate to assess costs and disbursements against the respondent School Board, the party prevailing on this appeal. (CPLR 8107.)

With respect to the merits of the appeal, we note that appellants ’ notice of claim was untimely served 92 days after the accident. (General Municipal Law, § 50-e; Pugh v. Board of Educ., 38 A D 2d 619 , affd. 30 N Y 2d 968 .) Belief from late filing is only available where a motion for such relief is made within one year after the happening of the event and prior to commencement of an action on the claim. (General Municipal Law, § 50-e, subd. 5.) Here, neither the one-year limitation nor the requirement that the motion' be made pretrial was observed and, accordingly, relief from late filing was unavailable. Nor may an accident report filed with the respondent by the school principal on the day after the accident or a letter of representation filed by appellants’ attorney with respondent’s insurance carrier one week thereafter, be treated as a defective or irregular notice of claim under the saving provisions of subdivision 6 of section 50-e. That subdivision deals only with inconsequential defects or irregularities, not pertaining to the manner or time of service, in otherwise sound notices of claim. The fact remains that these documents were not intended to be a notice of claim in which curable good faith mistakes or omissions were made. Moreover, it is not at all clear that they were served on the proper parties. (§ 50-e, subd. 3.) Finally, we agree with the Appellate Division that there being no factual basis in the record to find an estoppel, it was an abuse of discretion to grant a new trial on that issue.

In concluding, we cannot but remark that in this case the harshness of section 50-e is once again laid bare. But where the Legislature has decreed that, as a prerequisite to sue, a particular form of notice shall be conveyed with particular details to particular public officers, the courts lack the power to substitute something else. The need for legislative reconsideration of the harsher aspects of section 50-e is apparent (see Matter of Murray v. City of New York, 30 N Y 2d 113 , 120, 121 [Breitbl, J., concurring]) in order that a more equitable balance may be

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achieved between a public corporation’s reasonable need for prompt notification of claims against it and an injured party’s interest in just compensation.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in the memorandum.

Order affirmed, etc.

Cases cited

Soules v. City of Rochester 10 A D 2d 362 N.Y. App. Div. 1960-04-27 p. 141
Robinson v. Board of Education of Galway Central School District No. 1 1 Misc 2d 634 N.Y. Sup. Ct. 1956-03-07 p. 141
Greguski v. Town On Oyster Bay 19 Misc 2d 763 N.Y. Sup. Ct. 1959-05-18 p. 141
Teresta v. City of New York 304 N. Y. 440 N.Y. 1952-10-16 p. 141
Harwood v. City of Hornell 41 Misc 2d 706 N.Y. Sup. Ct. 1964-01-28 p. 141
Claim of Kaiser v. Town of Salina 20 A D 2d 312 N.Y. App. Div. 1964-02-20 p. 141
Pugh v. Board of Education Central District No. 1-Fayetteville-Manlius School District 30 N Y 2d 968 N.Y. 1972-07-06 p. 141, p. 142
Young v. Board of Education of Union Free School District Eight 193 Misc. 216 Erie Cty. Ct. 1948-05-20 p. 141
Rosenberg v. City of New York 309 N. Y. 304 N.Y. 1955-11-22 p. 141
Natoli v. Board of Education 303 N. Y. 646 N.Y. 1951-10-19 p. 141
Melisi ex rel. Melisi v. Central School District No. 1 25 A D 2d 54 N.Y. App. Div. 1966-02-08 p. 141
Brown v. Board of Trustees 303 N. Y. 484 N.Y. 1952-03-13 p. 141
Murray v. City of New York 30 N Y 2d 113 N.Y. 1972-03-15 at 120, 121 p. 142

Statutes and regulations cited

General Municipal Law p. 142