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MATTER ANTONIO PEREZ ET AL. v. CITY NEW YORK (12/04/86)
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
1986.NY.54103 <http://www.versuslaw.com>; 509 N.Y.S.2d 289; 133 Misc. 2d 1083
December 4, 1986
IN THE MATTER OF ANTONIO PEREZ ET AL., PETITIONERS,v.CITY OF NEW YORK, RESPONDENT
Moskowitz, Passman & Edelman (Jeffrey M. Motelson of counsel), for petitioners.
Frederick A. O. Schwarz, Jr., Corporation Counsel (John Byrnes of counsel), for respondent.
David B. Saxe, J.
On May 16, 1985, Ivan Perez and Antonio Perez, petitioners in this matter, were the owners of a 1979 Chevrolet taxi that was parked on 58th Street and Sutton Place in Manhattan. A New York City sanitation truck apparently backed up and struck the taxi causing property damage in the sum of $886.20.
It is undisputed that a notice of claim was not filed within the 90-day statutory period (General Municipal Law § 50-e), although a written claim containing all the necessary specifics regarding the incident was filed on the 97th day after the accident.
The petitioners have applied for an order pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim.
The respondent, City of New York, has moved to dismiss the complaint (CPLR 3211 [a] ) or in the alternative for an order granting it summary judgment (CPLR 3212).
The city argues that even though the complaint for property damage was served within the one-year and 90-day period measured from the date of the accident, as required by General Municipal Law § 50-e (5), the notice of claim was not served within this time period (General Municipal Law § 50-e ) and the city, accordingly, contends this court lacks the power to authorize a ...