Swartz v. City of Rochester ( 1967 )

Order unanimously modified insofar as it grants relief for claims based on personal injuries, and motion denied as to those claims, and as so modified, order affirmed, without costs. Memorandum: On February 15, 1966 an automobile operated by Milton Swartz in which his wife was a passenger collided with a truck owned by defendant. In March, 1966 plaintiffs retained an attorney who did not file notices of claim within 90 days after the accident. The negotiations the attorney had in writing with defendant’s insurance carrier involved property damage only. Since the record contains no writings which justified reliance upon settlement representation for claims based on personal injuries, Special Term improperly granted the order as to those claims. Subdivision 5 of section 50-e of the General Municipal Law provides that the court, in its discretion, may grant leave to serve a late notice when the claimant has failed to serve his notice within the time limited “by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative of the party against which the claim is made or of its insurance carrier.” -(Appeal from order of Monroe Special Term, granting claimants’ motion to serve late notices of claim.) Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.