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The infant claimant, was born on April 10, 1960

The infant claimant, was born on April 10, 1960. On September 30, 1975, while participating in a soccer game between the school he was attending, Tappan Zee High School, and the Pearl River High School Junior Varsit, at the latter school’s field, the claimant allegedly sustained an injury to his foot when it struck a hidden object which was protruding from the ground. The infant claimant filed an application for leave to a file a late claim on December 5, 1977, which date was some 15 months after the effective date of the amendment to section 50-e, and some 26 months after the accident.

The Court cited a Court of Appeals decision on May 4, 1978, that is pertinent in the case at bar. In the said case, the Court said that the State highest Court was concerned with how the new guidelines enacted under the amendment to section 50-e of the General Municipal Law should be applied to claims accruing prior to September 1, 1976, the effective date of the amendment. It held that the Legislature, in enacting the new guidelines, intended to apply them to claims which accrued within one year prior to the effective date of the amendment; but that the amendment did not revive claims that accrued more than one year prior to such effective date.

On March 22, 1978, which was prior to the determination of the above mentioned case by the Court of Appeals, a Lawyer said that the Special Term initially denied petitioner’s application for leave to file notices of claim against both school districts on the ground that the application was untimely since the extension of the time to file such notices could not exceed the time limited for the commencement of the action against the public corporations, namely the period of limitations set forth in section 50-i of the General Municipal Law, to wit, one year and 90 days from the happening of the event.

However, on September 22, 1978, which was after the above mentioned case was decided by the Court of Appeals, a source said that the Special Term granted reargument of petitioner’s motion and, after reargument, granted the motion to the extent of allowing a notice of claim to be served against each school district on behalf of the infant. In reversing its earlier determination as to the infant, Special Term held that in view of the fact that the child had been injured on September 30, 1975, or less than one year prior to September 1, 1976, the effective date of the amendment to section 50-e, the infant’s application (as to appellant Pearl River, insofar as this appeal is concerned) was timely, since the application for an extension did not exceed the time limited for the commencement of the action against appellant, to wit, within one year and 90 days from the date the infant reached his majority, citing CPLR 208.
The issue in this case is whether under section 50-e (subd. 5) of the General Municipal Law, as amended effective September 1, 1976, the period of one year and 90 days within which a court of competent jurisdiction may extend the time for a notice of claim to be served upon a public corporation, may be tolled by infancy under CPLR 208.

The court insofar as deciding the case enumerates the pertinent portions of sections 50-e (effective September 1, 1976) and 50-I of the General Municipal Law and CPLR 208 respectively:

“s 50-e. Notice of claim
“1. When service required; time for service; upon whom service required “(a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, The notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.

“5. Application for leave to serve a late notice.

“Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider all the other relevant facts and circumstances including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim.

“s 50-i. Presentation of tort claims; commencement of actions
“1. No action or special proceeding shall be prosecuted or maintained against a school district for personal injury or spinal injury unless, (a) a notice of claim shall have been made and served upon the school district in compliance with section fifty-e of this chapter and (c) The action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.

“s 208. Infancy, insanity
“If a person entitled to commence an action is under disability because of infancy or insanity at the time the cause of action accrues. If the time otherwise limited is less than three years, the time (within which the action must be commenced) shall be extended by the period of disability “.

The Court held that the portion of the order granting, after reargument, the motion for leave to file a late notice of claim on behalf of the infant claimant as against the appellant school district should be reversed, and the motion denied as against the appellant, without costs. The Court held that the Special Term’s reliance on the Court of Appeals decision on May 4, 1978 as a basis for granting the relief requested herein was misplaced. As indicated above, the said case held that the amendment to section 50-e (subd. 5) of the General Municipal Law applied to claims which had their genesis in an injury that occurred on or after September 1, 1975. It did not deal with the question of whether the one year and 90 day limitation in which a court of competent jurisdiction was empowered to grant an extension for late filing, was tolled during the infancy of a claimant.

The Court said that it is true that notice of claim statutes and Statutes of Limitations have certain similar characteristics. Each relies on the passage of time to vitiate what might otherwise be a justifiable claim or cause of action, as well as upon rules as to when a claim or cause of action accrues. However, notice statutes, although designed to afford a municipality or other public corporation an opportunity to make an early investigation of the claim while the facts surrounding it are still fresh, were not intended as a trap for the unwary and the ignorant. Thus, statutes such as subdivision 5 of section 50-e, permitting a court, in its discretion, to extend the time for a claimant to file a notice of claim, were enacted to give such person relief where warranted from the harsh strictures of time imposed under conventional notice statutes.

The Court said that Statutes of Limitations on the other hand are not designed to afford a defendant, public corporate body or otherwise, an opportunity to investigate the alleged claim, but rather to penalize claimants for sleeping on their rights. They are statutes of repose, calculated to put an end to stale claims. A Statute of Limitations is not open to discretionary change by the courts no matter how compelling the circumstances.

Consistent with the above reasoning, the Court held that the sole purpose of a tolling statute based upon a personal disability is to afford such person an additional amount of time to sue, and exceptions to a limitations statute in favor of persons under disability should be strictly construed and never extended beyond their plain import.

With such prior observations in mind, subdivision 5 of section 50-e of the General Municipal Law, as it now reads, should be construed with respect to the tolling issue, by (1) first scrutinizing its chronological history and judicial decisions in this area with respect to language employed in such statute before September 1, 1976, and (2) determining whether the language now employed in the statute prevents the use of such past decisions as binding precedent in this instance.

Thus, this history of the gestation and birth of this statute, seems necessary by reason of contentions now made that, despite the statute’s plain language, and despite its specific provisions as to infants and others under disability, nevertheless, so we are told, it is still the law that, long after the end of the one-year period limited by subdivision 5 of section 50-e, a court may still permit late filing, by an infant. The short answer is that the Legislature has seen fit to deny such a power to the court, and that the Legislature has the undoubted right to do so.

The Court said that the primary purpose of the amendment was to provide courts a greater discretion to give relief from the requirement of filing a timely notice of claim, or concomitantly, to loosen the narrow constraints on judicial discretion set forth in such statute prior to the amendment. The primary ground for an extension cognizable by a court before the amendment was disability arising out of infancy or mental incapacity. Additionally a court could permit late filing when a person entitled to assert a claim had either died before the expiration of the 90-day period or had placed justifiable reliance upon written settlement representations made by an insurance carrier against whom the claim was to be made.
In addition, it should be noted at the outset that subdivision 5 of section 50-e, as amended, also enlarged the period within which a late notice of claim may be filed, from “one year after the happening of the event upon which the claim is based” to the “time limited for the commencement of an action by the claimant against the public corporation”, which under 50-i of the General Municipal Law is one year and 90 days. It is also true that the time limited to bring an action against such a public body under section 50-i is tolled, Inter alia, by the disability of infancy under CPLR. However, nowhere in either subdivision 5 of section 50-e or in section 50-i, is there any language expressly or impliedly indicating that the one year and 90-day limit is tolled by a disability when applied to the late filing of a notice of claim.
Moreover, under the CPLR 208, the tolling statute pertaining to a disability by reason of infancy, contains no language which may be deemed to apply to the filing of a late notice of claim. Rather it is specifically limited to a person entitled to commence an action who is under a disability because of infancy or insanity at the time the cause of action accrues and as it pertains to the infant claimant herein, if the time otherwise limited is less than three years, the time (within which the action must be commenced) Shall be extended by the period of disability. Had the Legislature intended that CPLR 208 should also apply to the extension period for late filing, it would have been relatively simple for it to have included the necessary implementing language in such section at the time it enacted the recent amendment to section 50-e (subd. 5) of the General Municipal Law.

In view of the forgoing, the Court held that petitioner’s interpretation of subdivision 5, as amended, suffers from a built-in anomaly. Under such strained interpretation, the limitation of one year and 90 days in which a court may exercise its discretion to grant late filing, based on the disability of infancy, would be automatically extended by the disability itself. Nothing in the record suggests that the Legislature ever intended such an incongruous result.
Hence, since Special Term lacked the power to grant any extension for filing of the notice of claim beyond the period of one year and 90 days after the date of the accident on which the claim is based, the Court reversed the order appealed from and denied petitioner’s application to file a late notice of claim.

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