Zipser v. Pound ( 1972 )

Alfred Olsen, J.

This is a $96 small claims lawsuit against the Westchester County Commissioner of Parks. The plaintiff, Howard Alan Zipser, is suing the Commissioner for certain art works destroyed without the owner’s permission.

The County of Westchester now makes a motion to dismiss this lawsuit because Mr. Zipser did not comply with the 90-day notice provision of subdivision 1 of section 50-e of the General Municipal Law.

The effect of section 50-e is unfair in that it creates two separate and distinct classes of plaintiffs. The first class is the private plaintiff who sues a private defendant. This plaintiff is a lucky plaintiff because he has three years in which to assert a negligence claim. Section 50-e créates a second subsidiary class of plaintiffs who must file their formal notice of claim against the county within 90 days, otherwise their claim is totally defeated and barred regardless of its merits.

. This is not justice. In the United States there should not be any second-class plaintiffs just as there should not be any second-class citizens. The United States Constitution guarantees equal protection of the laws to all. Enforcement of the short-time limit of section 50-e is unequal protection. It gives a municipality an unfair advantage over a private litigant.

This is a denial of due process and equal protection of the laws under the Constitution of the United States and the Constitution of the State of New York.

Everyone must stand before the -court without fear or favor. Everyone must stand before the law without an artificial cloak of a special short-time limit.

Therefore, this court holds that subdivision 1 of section 50-e of the General Municipal Law is unconstitutional as being repugnant and contrary to the provisions of the New York State Constitution and the United States Constitution.

In these modern' times, no government should have rights superior to the people.

In the sports of baseball and basketball there is only one set of rules for the players on both sides. So should it be with the law.

"When a law is unfair, arbitrary and gives only one-sided protection, it is not a true reflection of justice and good government. Such a law should and will not stand.

The motion of the county to dismiss the complaint is denied.

This case is set down for trial on the merits for February 23, 1.972 at 8:00 p.m.