Claim of El-Barry Realty Corp. v. City of New York

37 A.D.2d 543, 322 N.Y.S.2d 219, 1971 N.Y. App. Div. LEXIS 3786

Opinion

Order, Supreme Court, New York County, entered on October 5, 1970, unanimously reversed on the law and the facts and the motion denied. Appellant shall recover of respondent $30 costs and disbursements of this appeal. The order grants leave to serve a notice of claim in a proposed property damage action after the 90-day period prescribed by section 50-e of the General Municipal Law. Special Term in granting the application relied on subdivision 5 of the said law, which allows a late filing where the claimant relies on settlement representations made in writing by an authorized representative of the city. Claimant alleged both oral and written representations. The alleged oral representation is unavailing (Matter of Withey v. Board of Educ., 28 A D 2d 800). The written representation could not have been relied on because it was written after the application for leave to file a late notice was made. Moreover, the person making the representation (a neighborhood conservation officer) neither appears to be authorized nor purports to act for the city. The representation is merely her confident expectation that the authorized officials would act favorably. Concur — Markewieh, J. P., Nunez, Murphy, Steuer and Eager, JJ.