Government Empls. Ins. Co. v Agostino

[*1] Government Empls. Ins. Co. v Agostino 2010 NY Slip Op 50817(U) [27 Misc 3d 1220(A)] Decided on May 10, 2010 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2010
Supreme Court, Westchester County

Government Employees Insurance Company as subrogee of ELSA E. POPRUZUK, Plaintiff,

against

Anthony Agostino and CITY OF YONKERS, Defendants.



19899/2009



Law Office of Byran M. Kulak

Attorneys for Plaintiff

484 Temple Hill Road, Suite 110

New Windsor, New York 12553

Frank J. Rubino

Corporation Counsel

Attorney for Defendants

City of Yonkers

City Hall

Yonkers, New York 10701

William J. Giacomo, J.

Factual and Procedural Background

This is an action for property damage arising from an automobile accident which occurred on June 4, 2008 involving plaintiff's insured, Elsa Popruzuk, and a vehicle owned by defendant the City of Yonkers and operated by City of Yonkers employee co-defendant Anthony S. Agostino. On June 17, 2008, plaintiff, insurance company, served a notice of claim on the City of Yonkers which states that the date of loss was June 4, 2008.

On September 4, 2009, plaintiff commenced this action against defendants by filing a Summons with Notice with the Westchester County Clerk's Office. Defendants then served a Notice of Appearance with a Demand for a Complaint. Plaintiff served [*2]defendants with a complaint that alleged that the property damage occurred on June 4, 2008. Defendants answered raising, inter alia, the affirmative defense that plaintiff failed to comply with section 50-i of the General Municipal Law.

Defendants now move for an order dismissing the complaint on the ground that plaintiff commenced this action one year and 92 days after the date of loss, in violation of General Municipal Law § 50-i which requires that actions for property damage against a municipality must be commenced within one-year and ninety days after the date of loss. Defendants note that it is undisputed the loss occurred on June 4, 2008; therefore, they claim the time to commence an action expired on September 2, 2009.

In opposition to the motion, plaintiff contends that it did comply with General Municipal Law § 50-i by commencing the action one-year and three months after the date of loss. Plaintiff argues that since the loss occurred on June 4, 2008, it timely commenced the action on September 4, 2009 exactly one-year and three months after the date of loss.

Plaintiff also contends that pursuant to General Municipal Law § 50-h, a 50-h hearing must be effectuated within one year and three months before the plaintiff is able to file suit against a municipality. Plaintiff asserts that since a 50-h hearing was not demanded by the City it could not commence the lawsuit any sooner than it did.

Discussion

Pursuant to General Municipal Law § 50-i(1), a plaintiff has "one year and ninety days" in which to commence an action "after the happening of the event" (emphasis added). Although plaintiff cites no authority for its interpretation of the one-year and three month calculation of the General Municipal Law § 50-i limitations period, it apparently calculated the limitation period as follows: one year from June 4, 2008 to June 4, 2009 and then calculated the three-month period from June 4, 2008 to July 4, 2009 to August 4, 2009 to September 4, 2009. Plaintiff offers no support for this method of calculation and the Court did not find one statute or case which recognizes this method of computing the General Municipal Law § 50-i limitation period.

This Court has not found one Second Department case which directly addresses the issue at bar. However, the Fourth Department case of Decicco v. City of Syracuse, (68 AD3d 1771 [4th Dept 2009]), while not directly on point, offers guidance regarding how to calculate the one-year and 90-day limitation period in this case. In Decicco, plaintiffs commenced an action against the City of Syracuse on March 20, 2008 seeking damages as a result of an incident on December 20, 2006. The Decicco plaintiffs commenced the action one year and three months after the date of loss. The City of Syracuse then moved to dismiss the complaint on the ground that the action was commenced one year and 91 days after the date of the incident and ,therefore, pursuant to General Municipal Law § 50-i, it was time-barred by one day.

The Supreme Court denied defendant's motion and applied General Construction Law § 58 to calculate the General Municipal Law § 50-i limitation period. It held that February 29, 2008 should not be counted as part of the 90-day period; therefore, the action was not time-barred.

In reversing the lower court's decision, the Fourth Department held that the [*3]statute required counting the one-year period independently of the 90-day period. It found that the one-year period was governed by General Construction Law § 58 [FN1], however, the 90-day period was not. Rather, the Court held that the 90-day period was governed by General Construction Law § 20, which requires a calculation of the "number of calendar days exclusive of the calendar day from which the reckoning is made." (See also Bacalokonstantis v. Nichols, 141 AD2d 482 [2nd Dept 1988]). Thus, the Fourth Department determined that the action was time barred since it was commenced one year and 91 days after the date of loss.

Using the methodology set forth in Decicco , the proper calculation of the limitations period here is as follows: after the expiration of the one-year period on June 4, 2009, the 90-day period is counted. The 90th day after June 4, 2009 is September 2, 2009. Plaintiff, however, commenced this action on September 4, 2009, one year and 92 days after June 4, 2008, and, thus, it is time-barred. (See Decicco v. City of Syracuse, supra; General Municipal Law § 50-i(1).

The rational underlying this method of calculating a specific 90-day period is clear; three months is not a definite time period. Depending on the months involved and whether it is a leap year, the number of days contained in any particular three-month period can range from 90 to 92 days. Had the Fourth Department accepted the lower court's calculations or if this Court were to accept plaintiff's calculations, the General Municipal Law § 50-i limitation period would, in many cases, be different thus creating confusion and an unjust result for any plaintiff who did not get the benefit of the extra one or two days in a particular three-month period.

Plaintiff's remaining contention, i.e. that defendants' failure to demand a 50-h hearing prevented it from commencing this action timely is also without legal support. As the defendants properly argue, the purpose of General Municipal Law § 50-h governing examination of claims is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining a claimant about the facts of the claim. (See Nasca v. Town of Brookhaven, 10 AD3d 415 [2nd Dept 2004]). A municipality's demand for a 50-h hearing or examination is not a condition precedent to the commencement of an action against a municipality. If, however, a demand for a 50-h hearing or examination is made by the municipality and the action has not yet been commenced, compliance with the municipalities' demand becomes a condition precedent to the commencement of the action. (See General Municipal Law § 50-h; Steenbuck v. Sklarow, 63 AD3d 823 [2nd Dept 2009]["When requested, a claimant's submission to an examination of claims under General Municipal Law is a condition precedent to bringing an action against a municipality (emphasis added)."]).

Indeed, a municipality may waive its right to a 50-h hearing or examination by not demanding it within the 90-day time frame set forth in the statute. General Municipal Law § 50-h(2) provides, in relevant part, "No demand for examination shall be effective [*4]against the claimant for any purpose unless it shall be served as provided in this subdivision within ninety days from the date of filing of the notice of claim." Nor does General Municipal Law § 50-h create a mandatory 90-day waiting period. (See Franklin Soc. Fed. Sav. & Loan Ass'n v. City of New York, 66 Misc 2d 675 [NY Sup 1971][Plaintiff could properly institute an action against the city more than 30 days and less than 90 days after service of notice of claim, where the city's demand for examination had not yet been served; this section dealing with such examinations does not create mandatory 90-day waiting period.]).

The notice of claim in this case was served on defendants on June 17, 2008. Thus, even if plaintiff believed that the demand for a 50-h hearing was a condition precedent to the commencement of its action, that condition expired 90 days after June 17, 2008. (See Rizzi by Rizzi v. Patchogue Medford USFD No. 24, 132 Misc 2d 408 [NY Sup 1986][Injured student was not prevented from commencing his suit until hearing was held pursuant to provision of General Municipal Law governing examination of claims, where school district had failed to serve demand within 90 days of filing of notice of claim.]).

Accordingly, plaintiff fails to offer a valid reason for its failure to timely commence this action.

Based on the foregoing, defendants' motion to dismiss the complaint is GRANTED.

Dated: White Plains, New York

May 10, 2010

_________________________________________Hon. William J. Giacomo

Supreme Court Justice Footnotes

Footnote 1:General Construction Law § 58 defines the term "year," in relevant part, as "three hundred and sixty-five days, but the added day of a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day." Thus, in Decicco, the one-year period ran from December 20, 2006 to December 20, 2007.