Murphy v. Town of Yates

47 A.D.2d 807, 365 N.Y.S.2d 298, 1975 N.Y. App. Div. LEXIS 9129

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1975
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: Plaintiff, as the result of an automobile accident on June 25, 1972, sued the County of Orleans. After a jury was selected, plaintiff learned that the true defendant was the Town of Yates. On January 9, 1974 plaintiff Served a notice of motion seeking permission to serve a late notice of claim naming the Town of Yates defendant. Special Term granted the motion arid the town' appeals. Plaintiff' alleges “ that this insurance company [the same fat the county and. the town] was .notified within ninety days of the accident which occurred on June 25, 1972; and that its agents investigated the same”. This allegation, even if proved, does not sustain his position since section 50-e (subd. 5, par. 3) of the General Municipal Law refers to the failuré to serve a notice of claim resulting in “justifiable reliance upon settlement representations made in writing ” by the insurance carrier of the parties against whom, a claim is made. In the absence of "allegation that written settlement representations resulted in the plaintiff’s failure to serve a notice of claim on the town, plaintiff must fail in the relief requested. Despite the contentions made by the plaintiff, the restráint embodied in section 50-e of the General Municipal Law is mandatory and since the motion herein is dated more than 18 months after the accident upon which the lawsuit is premised, Special Term had no authority to grant the relief sought by plaintiff. The order of Special Term is reversed and the motion denied without prejudice to any relief which plaintiff may seek alleging estoppel on the part of the town. (Appeal from order of Orleans Special Term permitting service Of claim.). Present — Moule, J. P., Cardamone, Simons, Mahoney and Witnier, JJ.