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35 PARK AVENUE v. CITY NEW YORK (05/23/69)

NEW YORK SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT


May 23, 1969

35 PARK AVENUE, INC., RESPONDENT,
v.
CITY OF NEW YORK, APPELLANT

Appeal from that part of an order of the Civil Court of the City of New York (John C. Leonforte, J.), entered July 2, 1968, which denied a motion by defendant for an order to dismiss the complaint on the ground that the action is barred by the Statute of Limitations.

Concur -- Streit, J. P., Hofstadter and Gold, JJ.

Author: Per Curiam

In view of the strong public policy in this State against payment by public bodies of claims barred by the Statute of Limitations (N. Y. Const., art. III, § 19; Court of Claims Act, § 12, subd. 2; General City Law, § 20, subd. 5; Administrative Code of City of New York, § 93d-3.0; Matter of City of New York [ Elm St.], 239 N. Y. 220, 229; Matter of Huie [ McElligott ], 7 A.D.2d 599; Matter of Long Is. R. R., 174 Misc. 1037, affd. 261 App. Div. 914), we find the acknowledgment of the debt by the city department after the Statute of Limitations had run to be an impermissible waiver of the Statute of Limitations (General City Law, supra ; George C. Diehl, Inc. v. City of Lackawanna, 233 App. Div. 348, affd. 258 N. Y. 579). It was therefore error to deny the motion, except as to the 1961 payment in regard to which the city concedes an issue exists.

Order, insofar as appealed from should be modified by dismissing so much of the complaint as seeks recovery for sums paid in the years 1956 to 1960, and, as modified, should be affirmed, with $10 costs to appellant.

Order modified, etc.

Disposition

Order modified, etc.

19690523

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