Campbell v. City of New York ( 2005 )

OPINION OF THE COURT

Chief Judge Kaye.

The issue before us is whether the year-and-90-day period contained in General Municipal Law § 50-i is a statute of limitations (to which the tolling provision of CPLR 205 [a] applies) or a condition precedent to suit (which is a substantive limitation on the right to sue). We agree with plaintiff that section 50-i sets forth a statute of limitations, not a condition precedent.

On December 17, 1997, plaintiff was a wheelchair-bound passenger in a City of New York-owned van driven by a city corrections officer. According to plaintiff, his wheelchair was not correctly restrained in the van and, as the driver turned at the intersection of 161st Street and the Grand Concourse in the Bronx, plaintiff fell over, further injuring an already fractured leg. On or about March 17, 1998, plaintiff served a notice of claim on the City (General Municipal Law § 50-e). In a complaint dated December 16, 1998; plaintiff brought an action in the United States District Court for the Southern District of New York pursuant to 42 USC § 1983 seeking money damages for the alleged violation of his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. On April 8, 2002, the court granted summary judgment to the City, dismissing the federal claims for failure to exhaust administrative remedies; the court declined to exercise pendent jurisdiction over plaintiffs state law claims.

By summons and complaint served on or about July 10, 2002, plaintiff commenced the instant personal injury action in State Supreme Court against the City and the officers involved in the incident. The City moved to dismiss the complaint on the ground that the action was time-barred under General Municipal Law § 50-i (1) (c), which provides that no personal injury action shall be maintained against the City unless the action is “commenced within one year and ninety days after the happening of the event upon which the claim is based.” Specifically, the City maintained that section 50-i is a condition precedent to suit, not a statute of limitations subject to the tolling provision of CPLR 205 (a), which states:

“(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.”

In opposition, plaintiff asserted that the tolling provision of CPLR 205 (a) applied to section 50-i and that his action was not time-barred. Supreme Court granted the City’s motion, relying on our decision in Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375 [1999]), and the Appellate Division affirmed. We now reverse.

Discussion

This Court has consistently treated the year-and-90-day provision contained in section 50-i as a statute of limitations (see e.g. Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 259 [1980] [section 50-i “has generally been regarded as a Statute of Limitations subject to the tolls . . . provided in CPLR 208”]; Pierson v City of New York, 56 NY2d 950, 954-955 [1982] [labeling the year-and-90-day period of section 50-i a “Statute of Limitations” and concluding that a notice of claim must be filed before statute of limitations expires, “unless the statute has been tolled”]; Giblin v Nassau County Med. Ctr., 61 NY2d 67, 69 [1984] [concluding that section 50-i’s “Statute of Limitations for municipal tort liability is tolled” under CPLR 204 when the plaintiff seeks permission to file a late notice of claim]).

In Baez v New York City Health & Hosps. Corp. (80 NY2d 571, 576 [1992]), we observed that at the time plaintiff executor’s wrongful death cause of action commenced, “[a] one-year and 90-day Statute of Limitations period . . . applied to actions commenced against employees of municipal defendants or public corporations (General Municipal Law § 50-i).”¹ More recently, in Henry v City of New York (94 NY2d 275 [1999]), we considered whether an infant’s action against the City was time-barred when the infant (through a parent) timely filed a notice of claim pursuant to General Municipal Law § 50-e, but failed to commence the action within the year-and-90-day period of section 50-i. We held that CPLR 208 tolled the statute of limitations for the period of infancy and that the infant’s suit was not time-barred, thus again treating the year-and-90-day requirement of section 50-i as a statute of limitations subject to CPLR article 2 tolling.

The City presents no valid reason for departing from this consistent precedent.

Mistakenly relying on Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375 [1999]), the City maintains that the year-and-90-day limitation in section 50-i constitutes a waiver of sovereign immunity. In Yonkers, we addressed whether the requirement for bringing an action against the Port Authority within one year under McKinney’s Unconsolidated Laws of NY § 7107 (L 1950, ch 301, § 7) was a condition precedent to suit or a statute of limitations. In concluding that the statute contained a condition precedent to suit, we observed that section 7107 was a single enactment of the Legislature both consenting to suits against the Port Authority and incorporating a timeliness requirement as “an integral part of its waiver of sovereign immunity” (93 NY2d at 379). We underscored that if a statute not only creates a cause of action but also attaches a time limitation to its commencement, then “time is an ingredient of the cause” (id., quoting Romano v Romano, 19 NY2d 444, 447 [1967]) and its limitation is a condition precedent to the maintenance of the suit. In section 7107, the Legislature explicitly stated that a suit against the Port Authority could go forward only “upon the condition [that it] be commenced within one year” (McKinney’s Uncons Laws of NY § 7107 [emphasis added]).

The express terms of section 50-i and its legislative background are distinctly different. Nowhere in section 50-i does the term “condition” appear. Rather, the section states that “[n]o action or special proceeding shall be prosecuted or maintained against a city . . . unless . . . the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.”²

Nor, in the case of actions against the City, was there a single enactment consenting to suit and incorporating a time limitation as an integral part of a waiver of sovereign immunity. As we recognized in Florence v Goldberg (44 NY2d 189, 194-195 [1978]), when the State of New York waived its sovereign immunity in 1929, its subdivisions, including the City, also lost their protection from suit. While the State placed time limitations on suits against itself, it did not likewise set forth time limitations for suits against municipalities (see Court of Claims Act § 10). It was not until 1959 that the Legislature evinced its intent to make uniform the provisions for commencing actions against municipalities by enacting section 50-i (see La Fave v Town of Franklin, 20 AD2d 738 [3d Dept 1964] [citing Governor’s Approval Mem, 1959 NY Legis Ann, at 458]). Thus, there is no evidence that the Legislature intended the year-and-90day provision of section 50-i as a condition precedent to suit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant City of New York’s motion to dismiss denied.

1 . In Baez, the statute could not he tolled, however, because plaintiff, as executor, could have sought appointment as the personal representative for the estate and commenced the wrongful death action—the CPLR 208 infancy toll did not apply because the infant distributees could not “commence the action.” (80 NY2d at 577.)

2 . By contrast, the notice of claim requirement contained in section 50-i (1) (a) directs parties to General Municipal Law § 50-e, which treats a notice of claim as a condition precedent (see e.g. O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]).