127 Misc. 2d 40 | N.Y. Sup. Ct. | 1985
OPINION OF THE COURT
Plaintiffs move for an order pursuant to CPLR 3211 (b) to dismiss the defendant county’s affirmative defense that no notice of claim was served as required by General Municipal Law § 50-e. The county moves to dismiss the complaint on the basis of that affirmative defense. Plaintiffs assert that no notice of claim is required pursuant to General Municipal Law § 50-e (8), arguing that the infant was a ward of the Commissioner of Social Services within the meaning of that section. Plaintiffs further assert that if the infant is within the exception of section 50-e (8), then so too ought to be the parent making a derivative claim for loss of services.
Plaintiff infant was determined to be a juvenile delinquent and upon an order of disposition was placed with the Commissioner of Social Services for placement in foster care or Glove House, a residential youth facility (see, Family Ct Act §§ 352.1, 352.2, 353.3). He was then placed in the foster care of the defendants Martone, in whose home he was injured when attacked by their dog. Plaintiffs allege that the Commissioner
Section 50-e requires the filing of a notice of claim against public corporations. However, section 50-e (8) states that “[t]his section shall not apply * * * to claims against public corporations by their own infant wards.” Plaintiffs contend that the infant having been placed in the care and custody of the County Department of Social Services was a ward of the county within the meaning of section 50-e (8). The defendant county argues that the section only applies to a formal guardian-ward relationship such as that may be established pursuant to Social Services Law §§ 384 and 384-b or pursuant to Family Court Act article 6.
Ward is not defined by the General Municipal Law or any other act of the Legislature. Nevertheless, the meaning of the word in legal parlance is well accepted as one, usually an infant, who has been placed by a court under the care of a guardian (see, Black’s Law Dictionary 1420 [rev 5th ed 1979]; 25 NY Jur, Guardian and Ward, § 1). A guardian, other than a natural parent, is “[a]ny person to whom letters of guardianship, whether of the person, property or both, of an infant have been issued by a court of this state” (SCPA 103 [24]). While in general usage ward may refer to any individual under the care or protection of another (see, Webster’s New Universal Unabridged Dictionary 2060 [rev 2d ed 1983]), the word should be construed according to its accepted legal sense. “Words having a precise and well settled meaning in the jurisprudence of [the State] are to be understood in the same sense when used in its statutes, unless a different meaning is unmistakably intended” (Perkins v Smith, 116 NY 441, 448-449; Skeels v Paul Smith’s Hotel Co., 195 App Div 39, 42).
Any doubt as to the intendment of the Legislature is resolved by an examination of the events leading to the amendment of section 50-e (8) to include an exception for infant wards of public corporations. The amendment followed the decision of the Appellate Division, Second Department, in Gibbs v City of New York (23 AD2d 665). The court there allowed an infant who had been surrendered to the Commissioner of Welfare to bring an action without having to file a notice of claim. The court stated: “Where, as here, the prospective defendant (the city) and its own agency were the only parties reasonably situated to ascertain the existence of the claim and to prosecute the claim, it would be an idle gesture to require that they file a notice of claim against themselves” (supra, pp 665, 666).
Since the infant is not a ward of the Department of Social Services within the meaning of section 50-e (8), a notice of claim is required. None having been served, defendant is entitled to an order dismissing the complaint.