Trakis v. City of New York — 56 N.Y.2d 1018

Majority

p. 1018

James Trakis, Respondent, et al., Claimant, v City of New York, Appellant.

Decided June 23, 1982

p. 1019

APPEARANCES OF COUNSEL

Frederick A. O. Schwarz, Jr., Corporation Counsel (Marjorie E. Bornes, of counsel), for appellant.

Peter E. De Blasio for respondent.

OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the matter remitted to the Appellate Division, Second Department. Though it was improper for Special Term to deny claimant James Trakis’ application on the basis of his wife’s ability to file a notice of claim on his behalf (Matter of Rosenberg v City of New York, 309 NY 304 ), it cannot be said that claimant’s affidavit, portions of which were controverted by the city, required the granting of the application as a matter of law. For this reason, there must be a reversal of the Appellate Division order and a remittal to that court for its further consideration on the facts and in the exercise of discretion.

p. 1020

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.

Cases cited

Rosenberg v. City of New York 309 NY 304 N.Y. 1955-11-22 p. 1019