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Davidson v. Bronx Municipal Hospital

64 N.Y.2d 59 Court N.Y. Decision date 1984-12-20 English

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Arthur T. Davidson, Respondent, v Bronx Municipal Hospital et al., Appellants.
Argued November 15, 1984;
decided December 20, 1984
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POINTS OF COUNSEL
Frederick A. O. Schwarz, Jr., Corporation Counsel (Ellen B. Fishman and Leonard Koerner of counsel), for appellants.
Where plaintiff never sought leave to file a late notice of claim and the time for making such an application had expired, Special Term had no discretion to allow plaintiff to file a notice of claim nunc pro tunc. Accordingly, it was improper for Special Term to relieve plaintiff from compliance with the applicable statutes by deeming his summons and complaint to be a notice of claim and permitting a new action to be instituted. (Giblin v Nassau County Med. Center, 61 NY2d 67 ; Pierson v City of New York, 56 NY2d 950 ; Matter of Gelpi v New York City Health & Hosps. Corp., 90 AD2d 503 ; Gaynor v Town of Hoosick, 85 AD2d 844 , 58 NY2d 699 ; Silbernagel v City of New York, 85 AD2d 586 , 57 NY2d 691 ; Matter of Stoute v City of New York, 91 AD2d 1043 ; Fraccola v City of Utica, 77 AD2d 161 ; Perry v State of New York, 64 AD2d 799 ; Pierce v New York City Housing Auth., 43 AD2d 842 ; Brennan v City of New York, 88 AD2d 871 , 59 NY2d 791 .)
Arthur T. Davidson, respondent pro se.
I. A summons and complaint served within a 90-day notice of claim period had been uniformly held by the Appellate Court to be in complete satisfaction of the requirement of subdivision 1 of section-50-e of the General Municipal Law and section 7401 of McKinney’s Unconsolidated Laws of the State of New York. (Quintero v Long Is. R.R., 31 AD2d 844 ; Hines v City of Buffalo, 79 AD2d 218 ; Matter of Phaler v Hicks, 71 AD2d 820 ; Barber-Scotia Coll, v City of New York, 390 F Supp 525 ; Moskol v Sood, 404 F Supp 916 .) II. The purpose of providing short terms of filing claims and actions against municipalities is to allow for prompt investiga
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tion to be made and for defenses to be prepared before it is too late to do so efficiently. (Teresta v City of New York, 304 NY 440 ; Leone v City of Utica, 66 AD2d 463 , 49 NY2d 811 .) III. The Legislature never intended the notice of claim to be used as a device to defeat the rights of people with legitimate claims. (Hopkins v East Syracuse Fire Dept., 49 Misc 2d 197 ; Matter of Greguski v Town of Oyster Bay, 19 Misc 2d 763 .)

OPINION OF THE COURT

On January 17, 1980, plaintiff’s violin was allegedly stolen from his automobile which was parked in a lot owned by Bronx Municipal Hospital. Plaintiff served a summons and complaint on the New York City Health and Hospitals Corporation on January 22,1980, a summons and complaint on the Corporation Counsel of the City of New York on January 28, 1980, and a notice of claim on the Comptroller of the City on May 5, 1980, 115 days after the theft.

Defendants moved for dismissal on the ground that plaintiff failed to comply with the statutory requirements for timely service of notices of claim prior to bringing suit. Special Term, deeming plaintiff’s service of a summons and complaint upon each defendant legally sufficient to constitute a valid notice of claim, granted defendants’ motion to a limited extent only. The court dismissed the action without prejudice to the institution of a new one, pursuant to CPLR 205 (subd [a]), by service of a proper complaint containing the required allegation, not included in the initial complaint, that a notice of claim had been served at least 30 days earlier (General Municipal Law, § 50-i; New York City Health and Hospitals Corporation Act, § 20, subd 1 [L 1969, ch 1016, as amd], McKinney’s Unconsolidated Laws of NY, § 7401, subd 1). The Appellate Division unanimously affirmed the order of Special Term, without opinion, and granted defendants leave to appeal. We agree with defendants’ argument that plaintiff’s summons and complaint did not constitute a valid notice of claim, and consequently that no timely notices of claim were ever served. We therefore modify the Appellate Division order to dismiss the complaint with prejudice.

Service of a notice of claim — the contents of which are prescribed by section 50-e of the General Municipal Law and section 7401 of McKinney’s Unconsolidated Laws of NY — is a condition precedent to a lawsuit against a municipal corporation. Plaintiff must not only plead in his complaint that he has

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served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that in that time defendants neglected to or refused to adjust or to satisfy the claim (Giblin v Nassau County Med. Center, 61 NY2d 67 , 73-74; General Municipal Law, § 50-i, subd 1; McKinney’s Unconsolidated Laws of NY, § 7401, subd 1). Failure to comply with provisions requiring notice and presentment of claims prior to the commencement of litigation ordinarily requires dismissal (Republic of Argentina v City of New York, 25 NY2d 252 , 265; see, also, Parochial Bus Systems v Board of Educ., 60 NY2d 539 , 548). The mandatory 30-day period between service of the notice of claim and the summons and complaint serves the salutary purpose of allowing municipal defendants to conduct an investigation and examine the plaintiff with respect to the claim (see General Municipal Law, § 50-h; McKinney’s Unconsolidated Laws of NY, § 7401, subd 2), and to determine whether the claims should be adjusted or satisfied before the parties are subjected to the expense of litigation (see Arol Dev. Corp. v City of New York, 59 AD2d 883 ; Devon Estates v City of New York, 92 Misc 2d 1077 , 1078). Indeed, we are advised by defendants, who are subject to a great many claims, that notices of claim and complaints are processed by different administrative units, one for investigation and the other for litigation. By serving only a summons and complaint signalling a litigation, and not the statutory notice of claim followed by a summons and complaint, signalling a period for investigation, plaintiff frustrated such procedures and the legislative purpose served by the statutory scheme.[1]

Having failed to comply with the law applicable to commencing an action against defendants, plaintiff’s claim must fail. Accordingly, the Appellate Division order should be modified, with costs to defendants, by dismissing the complaint with prejudice, and, as so modified, affirmed.

Chief Judge Cooke and Judges Jasen, Jones, WachtEer, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed.

* Nor did plaintiff, a lawyer who has previously utilized the correct procedure in litigation against the City, avail himself of the opportunity to seek leave to serve a notice of claim nunc pro tunc.

Cases cited

Statutes and regulations cited