Fabricant v. City of New York

273 A.D. 975, 78 N.Y.S.2d 277, 1948 N.Y. App. Div. LEXIS 5560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1948
• Status: Published

Opinion

On August 14, 1947, there was a collision between a trolley car operated by the City of New York and a taxicab owned by respondent Fabricant and operated by respondent Bernstein. Respondents did not serve a notice of claim within the time required by section 50-e of the General Municipal Law. Two days after the expiration of such period respondents moved for an order granting leave to serve a proposed notice of claim within a reasonable time. The order appealed from grants permission to serve the notices of claim within three days after the entry and service of the order. Pursuant to the permission granted, respondents served notices of claim. Thereafter the comptroller served notices on respondents to appear for examination with respect to the claim, which examination was duly. held. Order reversed on the law and the facts, without costs, and the motion denied, without costs. Renewed motion to dismiss appeal denied, without costs. There is no showing that claimants were so incapacitated within the sixty-day period following the accident that they were unable to serve a notice of claim sworn to by them or by someone on their behalf. The examination of the claimants by the comptroller after the service of the notices of claim, pursuant to the permission granted by the order appealed from, did not bar the city from prosecuting its appeal. (Matter of Aurieehio v. City of New York,. 272 App. Div. 1067.) Lewis, P. J., "Carswell, Johnston, Adel and Sneed, JJ., concur. [See post, p. 1016.]