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No. 5263–12.

Decided: September 30, 2013

Shantz & Belkin, Attorneys at Law, M. Randolph Belkin, Esq., of counsel, Latham, for plaintiff. Murphy, Burns, Barber & Murphy, LLP, Stephen M. Groudine, Esq., of counsel, Albany, for defendant.

Defendant Town of Kinderhook moves for an Order pursuant to CPLR Rule 3212 granting it summary judgment and dismissing the Plaintiff's complaint. The Plaintiff Village of Valatie opposes defendant's motion and cross-moves for summary judgment, or alternatively to amend its complaint.

On March 4, 2012, while responding to a mutual aid call made by the defendant, a fire truck owned by the plaintiff struck a row of mailboxes, was damaged, and thereafter underwent considerable repairs as a consequence of the accident. On March 6, 2012, the plaintiff's insurance company contacted the defendant's insurance company seeking payment for the repairs-after failed negotiations—the defendant's insurance company tendered a check dated April 26, 2012 in the amount of $17,280.89 in payment of the damages to the plaintiff. On May 16, 2012 the plaintiff's insurance company paid plaintiff $24,168.44 for the repair of the subject vehicle, and demanded reimbursement from the defendant's insurance company under its subrogation rights pursuant to the plaintiff's insurance policy. On July 9, 2012, defendant's insurance company reiterated its $17,280.80 offer to settle the claim for damages to plaintiff's vehicle. On November 9, 2012, plaintiff commenced this action by filing of a summons with notice, seeking pursuant to General Municipal Law § 209 to recover $24,168.44 for the damages sustained in the March 4, 2012 accident.

Defendant, in its answer, asserted the affirmative defense that the plaintiff failed to comply with the notice requirement under General Municipal Law § 209(2), claiming plaintiff failed to give written notice, or by any other means, to the plaintiff's town clerk, and now to dismiss plaintiff's complaint. In opposition, plaintiff asserts that defendant had actual knowledge of the claim—pointing to the defendant's insurance agent being notified within two days of the accident and the extensive negotiation between the parties' respective insurance agents—and argues defendant had notice well within the 60 day notice the statute requires. The question then becomes whether the defendant was given the requisite notice to permit the claim for damages to be allowed. Here, the Court has reviewed the record, particularly considering the email and correspondence exchange between the parties' insurance agents.

General Municipal Law § 209(2) states, in part, that:

“(n)o.. claim ․ shall be allowed unless, within sixty days after such loss or damage has been sustained, or such expense has been incurred ․ written notice thereof be served by mail or otherwise on the ․ town clerk of the town in relation to the territory in the town located as aforesaid, from which issued the call for assistance.”

Unequivocally, plaintiff did not within 60 days of the accident serve a written notice of claim on the defendant's town clerk (General Municipal Law § 209[2] ). Albeit plaintiff's complaint alleges written notice of the loss was served within 60 days of the accident, that is simply not corroborated by a proof of service of the notice of claim or by other supporting affidavit, and is absolutely refuted by Kimberly A. Pinkowski, defendant's town clerk, who states that she did not receive any written notice of the accident, and that prior to January 22, 2013 she had no notice of it. Further, a review of the copies of email and correspondence exchanged between the parties' insurance agents shows no copy being provided to the defendant or its town clerk. As well, the defendant town board minutes, beginning March 8, 2012 and continuing to July 26, 2012 includes no mention of the March 4, 2012 accident or the communications exchanged between the parties' insurance agents.

Now, plaintiff offers two arguments why its late notice of claim should be allowed: first, that notification to defendant's insurance agent within days of the accident was prompt notice to defendant and therefore defendant sustained no prejudice; second, defendant should be estopped from asserting the late notice defense on account of its settlement conduct. Here, plaintiff argues General Municipal Law § 50–e(5), which affords a claimant under § 50–e to apply for leave to serve a late notice of claim, is applicable and the Court should permit plaintiff's late notice of claim. In the Court's view, plaintiff's reliance on § 50–e is misplaced. Simply stated, General Municipal Law § 209 contains no provision for a late notice, nor does it afford the court the authority to permit a late notice of claim. The Court is mindful, where the statutory language is clear and explicit, the plain language of the statute is the court's best guide of the legislative intent (Matter of Suffolk Regional Off–Track Betting Corp. v. New York State Racing and Wagering Board, 11 NY3d 559, 571 [2008]; State of New York v. Patricia II, 6 NY3d 160, 162 [2006]; Desderio v. Ochs, 100 N.Y.2d 159, 161 [2003] ) and the time period is to be strictly construed. Further, although no facts have been demonstrated here to show that the defendant acted to delay the filing of a notice of claim by the defendant, equitable estoppel is not generally applicable to a municipal entity acting in its governmental capacity (Matter of Hamptons Hospital & Medical Center, Inc. v. Moore, 52 N.Y.2d 88 [1981] ).

Certainly, defendant, by admission of admissible proof, has established entitlement to summary judgment and dismissal of plaintiff's complaint as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Gilbert Frank Corp. v. Federal Insurance Co., 70 N.Y.2d 966 [1988] ). Here, defendant's proof that plaintiff failed to adhere to the statutory prerequisite for the allowance of its claim—that plaintiff failed to serve of notice of the claim upon the town clerk within sixty days of loss, damage or expense (General Municipal Law § 209[2] ) is un-controverted. Thus, to defeat defendant's motion for summary judgment, plaintiff is tasked with the burden of demonstrating the existence of “․ facts sufficient to require a trial” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] )—which the Court finds that plaintiff has utterly failed to do (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068 [1979] ).

Accordingly, it is

ORDERED, that the Defendant's motion for an Order granting summary judgment is hereby granted and the Plaintiff's complaint is dismissed, and it is further

ORDERED, that the Plaintiff's cross-motion for summary judgment is denied, as is the Plaintiff's motion to amend its complaint.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorney for the Defendant. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.


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