 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Campbell v. City of New York2/17/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
The issue before us is whether the year-and-90-day period contained in General Municipal Law § 50-i is a statute of limitations (to which the tolling provision of CPLR § 205 applies) or a condition precedent to suit (which is a substantive limitation on the right to sue). We agree with plaintiff that section 50-i sets forth a statute of limitations, not a condition precedent.
On December 17, 1997, plaintiff was a wheelchair-bound passenger in a City of New York-owned van driven by a City corrections officer. According to plaintiff, his wheelchair was not correctly restrained in the van and, as the driver turned at the intersection of 161st Street and the Grand Concourse in The Bronx, plaintiff fell over, further injuring an already fractured leg. On or about March 17, 1998, plaintiff served a notice of claim on the City (General Municipal Law § 50-e). In a complaint dated December 16, 1998, plaintiff brought an action in the United States District Court for the Southern District of New York pursuant to 42 USC § 1983 seeking money damages for the alleged violation of his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. On April 8, 2002, the court granted summary judgment to the City, dismissing the federal claims for failure to exhaust administrative remedies; the court declined to exercise pendent jurisdiction over plaintiff's state law claims.
By summons and complaint served on or about July 10, 2002, plaintiff commenced the instant personal injury action in State Supreme Court against the City and the officers involved in the incident. The City moved to dismiss the complaint on the ground that the action was time-barred under General Municipal Law § 50-i, which provides that no personal injury action shall be maintained against the City unless the action is "commenced within one year and ninety days after the happening of the event upon which the claim is based." Specifically, the City maintained that section 50-i is a condition precedent to suit, not a statute of limitations subject to the tolling provision of CPLR § 205 (a), which states:
"(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action."
In opposition, plaintiff asserted that the tolling provision of CPLR 205 § (a) applied to section 50-i and that his action was not time-barred. Supreme Court granted the City's motion, relying on our decision in Yonkers Contracting Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375 ), and the Appellate Division affirmed. We now reverse.
Discussion
This Court has consistently treated the year-and-90-day provision contained in section 50-i as a statute of limitations (see e.g. Cohen v Pearl River Union Free School Dist., 51 NY2d 256, 259 [section 50-i "has generally been regarded as a Statute of Limitations subject to the tolls . . . provided in CPLR 208"]; Pierson v City of New York, 56 NY2d 950, 954-955 [labeling the year-and-90-day period of section 50-i a "Statute of Limitations" and concluding that a notice of claim must be filed before statute of limitations expires, "unless t
Page 1 2 3 4 5 6 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|