Rhodes v. Westchester Street Transportation Co. , 365 N.Y.S.2d 351 ( 1974 )

Alvin R. Ruskin, J.

A motion by plaintiff in a personal injury negligence action for leave to serve a late notice of claim against the County of Westchester pursuant to section 50-e of the General Municipal Law, and a cross motion by defendant to dismiss the complaint because of plaintiff’s failure to serve such a timely notice of claim on the county are denied.

Although neither side has seen fit to submit a copy of the complaint to the court, it is undisputed that plaintiffs action is only against the Westchester Street Transportation Co. Inc., which was the lessee and operator of the bus in which plaintiff was a passenger. While it may be that the County of Westchester is the owner of the bus, the county is not named as a party defendant and, consequently, the court finds that there is no need to serve a timely notice pursuant to section 50-e of the General Municipal Law as a condition precedent to the commencement of an action against the Westchester Street Transportation Co. Inc. only, irrespective of whatever agreements there may be between the County of Westchester and the Westchester Street Transportation Co. Inc. concerning indemnity for negligence or the provisions of section 50-e of the General Municipal Law.

However, assuming arguendo, that the service of such a notice is necessary, plaintiff’s affidavits are factually insufficient to warrant the court’s discretion in permitting the service of a late notice in this case for the reasons outlined in plaintiff’s moving papers.