Opinion
May 26, 1941.
Action on behalf of an infant for damages for personal injuries sustained as the result of the alleged negligence of the defendant in failing to remove or give warning of the presence of a submerged object immediately in front of a beach under defendant's control, and for admission to which it charged a fee, and by his father for loss of services and expenses. The cause of action of the father was dismissed at the trial for failure to file a notice of claim. Judgment of the County Court of Nassau County for infant plaintiff reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Order denying defendant's motion to vacate and set aside the judgment and for resettlement of the form of judgment so as to provide costs in favor of defendant against George P. Oppel, individually, reversed on the law, without costs, and motion granted, without costs. Negligence of the defendant could be predicated only on proof of notice to it of the presence of the submerged object. For aught that appears this object, which was not seen by any one and which consisted in part of moss and shells, may have floated in immediately prior to the happening of the accident. In addition, the conceded commencement of this action within three months of the service of the notice of claim violated the city's Local Law No. 3 of the Local Laws of 1931, which provided in part "no action shall be commenced to recover upon or enforce any such claim against the city until the expiration of three months after the service of said notice upon the corporation counsel." This was a condition precedent, compliance with which plaintiffs were required to plead and prove. Their failure to do so requires dismissal of the complaint. ( Reining v. City of Buffalo, 102 N.Y. 308; McGovern v. City of New York, 160 Misc. 714; affd., 247 App. Div. 775; affd., 272 N.Y. 455; Kaplan v. City of Poughkeepsie, 279 id. 153; Johannes v. City of New York, 257 App. Div. 197; affd., 281 N.Y. 825.) Lazansky, P.J., Hagarty, Johnston and Adel, JJ., concur; Carswell, J., concurs on ground last above stated.