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MATTER MARION LA PAN v. COUNTY ALBANY (12/16/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1968.NY.43955 <http://www.versuslaw.com>; 296 N.Y.S.2d 416; 58 Misc. 2d 657 December 16, 1968 IN THE MATTER OF MARION LA PAN, CLAIMANT,v.COUNTY OF ALBANY, RESPONDENT Gordon, Gordon & Siegel (Robert Siegel of counsel), for claimant. John J. Clyne, County Attorney, for respondent. Louis G. Bruhn, J. Author: Bruhn


Louis G. Bruhn, J.

Author: Bruhn

 This is a motion on behalf of the claimant for an order "permitting and allowing her to serve the proposed Notice of Claim, annexed to this application, pursuant to Section 50-e, Subdivision 5 of the General Municipal Law of the State of New York, and for such other and further relief as to the Court may seem just and proper." (Italics supplied.)

It appears that a notice of claim was duly filed by the claimant's husband within the period prescribed by subdivision 1 of section 50-e of the General Municipal Law, following an accident in which he allegedly sustained serious injuries as a result of the claimed negligence of the municipality.

Following the filing of the notice of claim by the husband, a landmark decision by our Court of Appeals on July 2, 1968, in the case of Millington v. Southeastern Elevator Co. (22 N.Y.2d 498) overruled the old court-made rule and recognized that there now exists "a cause of action for consortium in the wife, thereby terminating an unjust discrimination under New York law."

Such a claim by the wife, being derivative in nature, would normally arise on the date of the accident in which the husband received his injuries.

Under those circumstances, in this case it would be impossible for the wife to separately comply with the 90-day provision of subdivision 1 of section 50-e of the General Municipal Law.

Subdivision 5 of such section of the General Municipal Law has been held to be limited and not to be interpreted "as permitting a judicial extension for causes other than those prescribed in plain words." (Matter of O'Neil v. Manhattan & Bronx Surface Tr. Operating Auth., 23 A.D.2d 488, 489.)

Since the cause existing in this claimant's case does not fall within any of those three causes contained in that subdivision, relief is not available to her thereunder.

CPLR 2004 provides: "Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."

While at first blush it might appear that relief of the character sought by the claimant could surely be given under this section, the great weight of authority appears to be to the contrary.

In a leading case of Matter of Powers v. Foley (25 A.D.2d 525) the court stated: "Nor does CPLR 2004 permit an extension of time to be granted to the petitioner; it applies to extensions of time for the doing of acts in actions and proceedings and not for the doing of acts which are substantive in character and provided for under other statutes".

While the case of Quintero v. Long Is. R. R. (55 Misc. 2d 813) is regarded by some as authority to the contrary, it would appear that Judge Sobel was indulging in some wishful hoping and did not rely entirely on any discretion he has under CPLR 2004 to arrive at the conclusion he reached there. At page 819, he stated:

"But a 90-day notice of claim statute might be saved from unconstitutionality simply by resting discretion in the courts to relieve from non prejudicial mistake, inadvertence, etc.

"The Legislature did so when it enacted section 50-e in 1945 (L. 1945, ch. 694) with respect to claimants laboring under legal disabilities (ยง 50-e, subd. 5, death, infancy, etc.). It is too late for a trial court to suggest that these exceptions were not intended to be exclusive although there is evidence to support that view. Too many high court ...


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