VEGA v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

Cristobal VEGA, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendant.

Decided: August 31, 1998

Before MANGANO, P.J., and COPERTINO, JOY and FLORIO, JJ. Charles Juntikka & Associates, LLP, New York City (Neil B. Currie, of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York City (Francis F. Caputo and Dona B. Morris, of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated July 22, 1997, as granted the cross motion of the respondent City of New York to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Paragraphs four through six of the complaint allege that a “[n]otice of claim was made on the defendants”, the City of New York and the New York City Board of Education, within 90 days of the occurrence, an examination was held, “at least 30 days have elapsed since service of notice of claim and an adjustment has been neglected or refused”.   The third paragraph of the respondent's answer states:

“3. Deny the allegations set forth in paragraph(s) 4-6, inclusive, except that a notice of claim was presented, that more than thirty days have elapsed without adjustment thereof”.

We reject the plaintiff's contention that this paragraph constitutes an admission by the respondent that a notice of claim was served upon it.   This statement does no more than acknowledge that a notice of claim was presented but admits nothing of substance with regard thereto, including, inter alia, the identity of the entity or entities to which it was presented.

In light of this determination we need not reach the parties' remaining contentions.

MEMORANDUM BY THE COURT.

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