Montez v. Metropolitan Transportation Authority , 350 N.Y.S.2d 665 ( 1974 )

Per Curiam.

Plaintiff’s cause of action for false arrest and imprisonment arose -on February 3, 1972, when she was released from confinement (Caminito v. City of New York, 25 A D 2d 848, affd. 19 N Y 2d 931; Schildhaus v. City of New York, 23 AD 2d 409, affd. 17 N Y 2d 853; Allee v. City of New York, 42 A D 2d 899). Accordingly, service of her notice of claim, which Was required within 90 days of accrual of the cause of action (Public Authorities Law, § 1276, subd. 2; General Municipal Law,

§ 50-e, subd. 1), was due no later than May 3, 1972. It is undisputed that the notice herein, which was sent by letter dated May 1, 1972, and addressed solely to the Metropolitan Transportation Authority, was not actually received by the Authority until May 8, 1972, and was not forwarded to the Long Island Railroad Company until, May 12, 1972, whereupon the claim was disallowed, without any action being taken with respect to it, because of the lateness of the service.

While it has been held that service of a notice of claim is deemed effective on the date of mailing (Desroches v. Caron, 11 Misc 2d 838), such rule is applicable only where service is made in the manner prescribed by statute (see Matter of Brake v. Comptroller of City of N. Y., 278 App. Div: 317; see also Teresta v. City of New York, 304 N. Y. 440). Here the notice was sent by certified rather than registered mail, as directed by the statute (see Oneida Nat. Bank & Trust Co. of Utica v. Manikas, 10 Misc 2d 671), and, accordingly, service was not effected until actual receipt, which occurred after expiration of the 90-day period. Indeed, pursuant to subdivision 3 of séction 50-e of the General Municipal Law, where service of the notice is made within the time limited but “in a manner not in compliance ” with the provisions of the statute, it is not deemed valid unless it is actually received and the claimant is examined in regard to such claim. Clearly, there was no compliance with such provision. (Cf. Melisi v. Central School Dist. No. 1, 25 A D 2d 54, where the notice was sent by ordinary mail and actually received within the time limited by statute and the court found that the requirement of service by registered mail was either waived or service was validated by virtue of General Municipal Law, § 50-e, subd. 3.)

Special Term, in holding that the notice was timely, relied upon Quintero v. Long Is. R. R. Co. (55 Misc 2d 813, affd. 31A D 2d 844). In that case, however, the Appellate Division found service sufficient because the summons and complaint were actually served within 90 days, , and contained all information required in a notice of claim. Here, as indicated, service was not effected within the 90-day time period. And, while the courts in certain instances are vested with discretion to permit late filing (see Matter of Murray v. City of New York, 30 N Y 2d 113, which held that a determination of the cognizable relation between infancy and delay in serving a notice of claim is a matter resting within the sound discretion of the court), the record herein does not permit the exercise of such discretion, the statutory conditions for extension of time not being present. (Martinez v. New York City Tr. Auth., 33 A D 2d 669, General Municipal Law, § 50-e, subd. 5.)

Moreover, the notice of claim which was served soley on the . Authority was directed to the wrong party. Liability herein is predicated on the acts of an employee of the railroad company. Since it is specifically provided by statute that such employee shall “ not be deemed [an employee] of the authority ’-’ (Public Authorities Law, <§ 1266, subd. 5), the latter may not be held liable for the torts committed by the railroad in the absence of a factual showing that the conductor had, in some manner, become the Authority’s agent — which showing we find to be completely lacking. And, we note that the service upon the Authority was, in any event, ineffective as to the railroad, which is a distinct legal entity for the purposes of suit. (Public Authorities Law, § 1266, subd. 5 ; Salner v. City of New York, 12 A D 2d 771.)

The order of the Supreme Court, New York County, entered May 21, 1973, should be reversed on the law, the plaintiff’s motion to dismiss the affirmative defenses denied, and the defendants’ cross motion for summary judgment dismissing the complaint granted, without costs or disbursements.