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Hernandez v. New York City Tr. Auth

Supreme Court, Special Term, New York County
Nov 19, 1963
41 Misc. 2d 123 (N.Y. Misc. 1963)

Summary

In Hernandez v New York City Transit Authority (41 Misc 2d 123 [Sup Ct, NY County 1963], affd 20 AD2d 968 [1st Dept 1964]), the court ruled that compliance with a demand for a hearing before the New York City Transit Authority pursuant to Public Authorities Law § 1212 (5) is not a condition precedent to suit.

Summary of this case from Lewis v. Mta Bus Co.

Opinion

November 19, 1963

Ernest Milchman, Joseph M. Irom and Milton Wittels for plaintiff.

Daniel T. Scannell for defendant.


The accident occurred on February 27, 1960, the notice of claim was served on May 12, 1960, defendant's demand for examination of plaintiff was served June 3, 1960 and held on December 8, 1960. The action was commenced on May 31, 1961, which was one year, and 93 days after the occurrence.

Defendant argues that the action is time-barred, having been commenced more than 1 year and 30 days after the occurrence (Public Authorities Law, § 1212, subds. 1, 2, 4; Civ. Prac. Act, § 24; Matter of Forastad v. New York City Tr. Auth., 13 A.D.2d 836; Heeren v. New York City Tr. Auth., 231 N.Y.S.2d 993).

Plaintiff maintains that the time elapsing between defendant's demand for an oral examination pursuant to statute and the time such examination was actually taken must be added to the time limitation and cites several cases against the City of New York in support of that proposition. However, these cases were predicated on the provisions of subdivision 5 of section 50-h Gen. Mun. of the General Municipal Law which specifically states that "Where a demand for examination has been served as provided in subdivision two of this section no action shall be commenced against the [municipal corporation] against which the claim is made unless the claimant has duly complied with such demand for examination, which compliance shall be in addition to the requirements of section fifty-e of this chapter."

No such provision appears in the Public Authorities Law. Subdivision 5 of section 1212 thereof states that "The authority may require any person, presenting for settlement an account or claim for any cause whatever against the authority, to be sworn before a member, counsel or an attorney, officer or employee of the authority, designated for such purpose, touching such account or claim and when so sworn to answer orally as to any facts relative to such account or claim."

There is no prohibition in that section to the commencement of an action until compliance with the demand for examination as provided in section 50-h Gen. Mun. of the General Municipal Law.

Nor can it be held that section 1212 Pub. Auth. of the Public Authorities Law must be read in the light of the provisions of section 50-h Gen. Mun. of the General Municipal Law. Section 1212, insofar as it refers to the General Municipal Law, does so only with respect to section 50-e and the serving of notice ( Heeren v. New York City Tr. Auth., 231 N.Y.S.2d 993, supra). The action herein is time-barred.


Summaries of

Hernandez v. New York City Tr. Auth

Supreme Court, Special Term, New York County
Nov 19, 1963
41 Misc. 2d 123 (N.Y. Misc. 1963)

In Hernandez v New York City Transit Authority (41 Misc 2d 123 [Sup Ct, NY County 1963], affd 20 AD2d 968 [1st Dept 1964]), the court ruled that compliance with a demand for a hearing before the New York City Transit Authority pursuant to Public Authorities Law § 1212 (5) is not a condition precedent to suit.

Summary of this case from Lewis v. Mta Bus Co.

In Hernandez v. New York City Transit Authority (41 Misc.2d 123, 245 N.Y.S.2d 43 [Sup Ct, N.Y. County 1963], affd 20 A.D.2d 968, 251 N.Y.S.2d 415 [1st Dept 1964]), the court ruled that compliance with a demand for a hearing before the New York City Transit Authority pursuant to Public Authorities Law § 1212(5) is not a condition precedent to suit.

Summary of this case from Lewis v. MTA Bus Co.

In Hernandez v. New York City Transit Authority, 41 Misc.2d 123, 245 N.Y.S.2d 43 [Sup.Ct., N.Y. County 1963],affd.20 A.D.2d 968, 251 N.Y.S.2d 415 (1st Dept.1964), the court ruled that compliance with a demand for a hearing before the New York City Transit Authority pursuant to Public Authorities Law § 1212(5) is not a condition precedent to suit.

Summary of this case from Williams v. MTA Bus Co.

In Hernandez v New York City Tr. Auth. (41 Misc 2d 123 [Sup Ct, NY County 1963], affd 20 AD2d 968 [1st Dept 1964]), the court held that the statute of limitations for commencing an action against the Transit Authority was not tolled between the time of the Transit Authority's demand for an oral examination and the time the examination was actually held.

Summary of this case from Williams v. NYC TR. AUTH.

In Hernandez v. New York City Transit Authority, 41 Misc.2d 123 (Sup. Ct. N Y Co. 1963), aff'd, 20 A.D.2d 968 (1st Dep't 1964), the court held that the statute of limitations for commencing an action against the Transit Authority was not tolled between the time of the Transit Authority's demand for an oral examination and the time the examination was actually held.

Summary of this case from Williams v. New York City Transit Auth
Case details for

Hernandez v. New York City Tr. Auth

Case Details

Full title:RAFAELA HERNANDEZ, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant

Court:Supreme Court, Special Term, New York County

Date published: Nov 19, 1963

Citations

41 Misc. 2d 123 (N.Y. Misc. 1963)
245 N.Y.S.2d 43

Citing Cases

Williams v. NYC TR. AUTH.

Section 1212, insofar as it refers to the General Municipal Law, does so only with respect to section 50-e…

Williams v. New York City Transit Auth

Section 1212, insofar as it refers to the General Municipal Law, does so only with respect to section 50-e…