Actions Against a Village

St. John's Law Review Volume 49, Fall 1974, Number 1 Article 21 Actions Against a Village St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . ST. JOHN'S LAW REVIEW [Vol. 49:170 summary proceeding to enforce his rights in a situation where he has unreasonably permitted large sums of rental arrears to accrue. 9 3 Moreover, where a tenant can show bad faith on the part of the landlord, as in the case where he attempts to circumvent eviction procedures and use the nonpayment to evict a tenant from a rent-controlled apartment, or where some other basis for equitable estoppel is present, the Antillean decision suggests that the landlord will be denied recovery in the summary proceeding. In instances where the landlord's delay in bringing the summary proceeding is unavoidable, however, Judge Kassal indicates that the three-month rule need not be applied. 194 In view of the history of landlord-tenant controversies and the confusion surrounding the adoption of the three-month rule, the interpretation given by Judge Kassal seems most equitable. Arbitrary and inflexible rules too often result in injustice. In light of the likelihood of abuse in cases where the landlord has delayed commencing the summary proceeding, the burden of proving reasonable diligence is properly placed upon him. On the other hand, the primary purpose of the three-month rule is to preserve the integrity of the summary proceeding, and, therefore, the rule should not be interpreted to automatically inure to the benefit of the tenant and thus bar the landlord from recovery. DOLE v. Dow CHEMICAL Co. Actions Against a Village CPLR 9801195 bars any action in negligence against a village unless it is served with a notice of claim pursuant to section 50-e of the Gen193 The language employed by the court in Maxwell, in establishing the three-month rule, suggests that the three-month period governing the commencement of summary nonpayment proceedings is similar to a statute of limitations. Thus, when a landlord attempts to recover more than three months rent in a single proceeding, it will be deemed to be for rent which accrued during the three-month period immediately preceding the commencement of the action. Consequently, he will be barred from collecting an amount in excess of three months rent. Yet, when faced with the problem, the courts have followed one of three procedures, all in the name of the three-month rule. They have either (1) dismissed the proceeding altogether with leave to commence an action at law (Gramford and Romero); (2) dismissed the proceeding without prejudice to the commencement of a summary proceeding solely for three months rent or a plenary action at law for all rent due (Stokes); or (3) having excused the delay, permitted recovery for more than three months rent (Malek and United Artists). 194 See note 186 supra. 195 CPLR 9801 provides: 1. No action shall be maintained against the village for a personal injury or injury to property alleged to have been sustained by reason of the negligence or wrongful act of the village or of any officer, agent or employee thereof, unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. 1974] SURVEY OF N.Y. PRACTICE eral Municipal Law.19 6 Compliance with the ninety-day notice provision of the General Municipal Law is a condition precedent to the commencement of any tort action against a municipality.1 97 Notwithstanding service of a timely notice of claim, in certain instances a plaintiff may never have an opportunity to litigate unless the municipality had been served with a notice of defect within a reasonable time prior to the accident. 98 Accordingly, section 6-628 of the Village Law imposes this additional condition precedent to the maintenance of any action for damages sustained as the result of a defective, snow-covered, or icy road, street, sidewalk, or bridge.199 The failure of an original plaintiff to furnish the required notice of claim, although fatal to the main action against the municipality, will not defeat a third-party claim by a co-tortfeasor against the same governmental unit.20 0 Compliance with section 50-e of the General 2. Every such action shall be commenced pursuant to the provisions of section fifty-i of the general municipal law. 196 N.Y. GEN. MuNIc. ILAw § 50-e (McKinney 1965) reads in pertinent part: 1. In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding the notice shall comply with the provisions of against a public corporation .... this section and it shall be given within ninety days after the claim arises. 2. The notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable. 197 8 WK&M 9801.02; H. WAcHIELL, NEw YoRK PRACricE UNDER Tm CPLR 70 (4th ed. 1973). The General Municipal Law also prescribes an abbreviated statute of limitations. Section 50-i provides that an action against a municipality in negligence "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." N.Y. GEN. MUitc. LAw § 50-i (McKinney 1965). 198 See, e.g., N.Y. VILLAGn LAW § 6-628 (McKinney 1973). This statute has been adopted into the CPLR as section 9804. 199 CPLR 9804 provides: No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to persons or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructive condition, or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of or to cause the snow or ice to be removed, or the place otherwise made reasonably safe. 200 In Valstrey Serv. Corp. v. Board of Elections, 2 N.Y.2d 413, 141 N.E.2d 565, 161 N.Y.S.2d 52 (1957) (per (...truncated)