Hochberg v. City of New YorkHochberg v. City of New York
Lead Opinion
Order of the Supreme Court, Bronx County (Anthony J. Mercorella, J.), entered on June 24, 1983, which granted plaintiff’s motion to serve a late notice of claim nunc pro tunc, is reversed, on the law, the motion denied and the complaint dismissed, without costs or disbursements. H On October 23, 1980 at approximately 2:30 a.m., plaintiff was driving his taxiсab on the Bruckner Expressway when it developed a fiat tire near the East 149th Street exit. He halted the vehicle in the far left lane of the highway to change the tire and use an emergenсy telephone located close by. When plaintiff stepped outside the taxi, it was struck from behind by another automobile, and plaintiff was purportedly injured. A police officer, resрonding to the accident, issued a traffic ticket to plaintiff for stopping to change a tirе in violation of subdivision a of section 157 of the New York City Traffic Regulations. According to the aсcident report, the operator of the second vehicle, who did not receive а traffic ticket, stated that there were no lights on the taxi. Some five months after this incident, on March 24,1981, and more than two months after the expiration of the 90-day period for service of a timely notice of claim, plaintiff served a notice of claim on defendant City of New York. Plaintiff аlleged that the city had negligently failed to provide sufficient space near the
Concurrence Opinion
concurs in a memorandum as follows: I can only concur on constraint. Thе facts, as set forth in the majority’s memo, indicate why this must be. In this case the notice of claim is a mere technicality and to dismiss the complaint because of it does not serve justice.