Teresta v. City of New York , 304 N.Y. 440 ( 1952 )

Fuld, J.

Plaintiff, a laborer over sixty years old, injured when a city-owned trolley in which he was a passenger collided with a truck, went to the Municipal Building in order to make known his claim against the City of New York. He was there given a notice of claim form and also, according to defendant, an instruction sheet stating that the completed form should be sent to the comptroller’s office by registered mail. Well within the sixty-day period then prescribed for service of the notice of claim, plaintiff sent the notice to the comptroller, but by ordinary mail. Despite this irregularity in the form of service — subdivision 3 of section 50-e of the General Municipal Law then provided that the notice was to be delivered “ personally, or by registered mail ’ ’ — the comptroller, before the sixty-day period had elapsed, responded to plaintiff in a letter notifying him to appear for examination. The examination was subsequently held. However, plaintiff’s action thereafter brought against the city has been dismissed upon the ground that his notice of claim had been transmitted by ordinary mail, contrary to the provisions of section 50-e.¹

Since the city neither returned the notice, nor at any time ' objected to the manner in which it had been served until after the commencement of the trial, the statutory requirement of personal service or notification by registered letter must be deemed to have been fully and effectively waived by the city. Neither legal theory nor public policy stands in the way of a waiver of that requirement, designed as it is solely for the benefit of the city. Subdivision 6 of section 50-e, upon which defendant relies, does not purport to affect the city’s power to waive formal defects relating to the notice of claim, but deals only ivith the power of the courts, independently of such a waiver, to “ correct,” “ supply ” or “ disregard ” such defects. The prime, if not the sole, objective of the notice requirements of such a statute is to assure the city an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim Avhile information is still readily available. (See, e.g., Sweeney v. City of New York, 225 N. Y. 271, 273; Purdy v. City of New York, 193 N. Y. 521, 523; Matter of Figueroa v. City of New York, 279 App. Div. 771; see, also, Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 265, 277.) That end is certainly not frustrated by permitting the city to accept timely notification by ordinary mail in lieu of the other methods prescribed by section 50-e.

Instead of returning the regularly mailed notice — which Avould have given plaintiff an opportunity to serve it properly Avell Avithin the statutory period — or simply ignoring it, an executive officer of the city actually informed plaintiff that his notice had been received and then proceeded to hold an examination in connection Avith the claim. Thus, present here, in addition to an unequivocal waiver, are elements of estoppel as well. In Sweeney v. City of New York (supra, 225 N. Y. 271, 273) the court said, Avith respect to a predecessor provision of section 50-e, that the statute “ is not a trap to catch the unwary or the ignorant.” In reaching our present conclusion, we but reaffirm that view.

The judgments should be reversed, with costs in all courts, and the motion to dismiss the complaint denied.

1 . The section was subsequently amended (L. 1951, ch. 393) to provide that “if service of such notice be made within the period prescribed by this section, but in a manner not in compliance with the provisions of this subdivision [service by registered mail or personally], such service shall be deemed valid if such notice is actually received by such person, officer, agent, clerk or employee and such party against whom the claim is made shall cause the claimant * * * to be examined in regard to such claim.”