53 N.Y.2d 1011 | NY | 1981
Lead Opinion
OPINION OF THE COURT
Section 50-i of the General Municipal Law requires that an action against a municipality for personal injury or property damage be commenced within one year and 90 days after “the happening of the event upon which the claim is based.” In Erickson v Town of Henderson (30 AD2d 282), a wrongful death case, this language was held to bar an action commenced more than one year and 90
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Dissenting Opinion
(dissenting). I would reverse the order of the Appellate Division and reinstate the order of Special Term denying defendant’s motion under CPLR 3211 (subd [a], pars 5, 7).
The complaint alleges that in 1964 defendant city negligently issued a certificate of occupancy for a multiple residence located at 197 Ravine Avenue, that the building did not conform to the filed plans or to the ordinances of the city in that it was built with defective and improper fire stops, that in reliance on the certificate of occupancy plaintiff purchased the building in February, 1969, that on January 15, 1973 fire destroyed the building without any fault of plaintiff, that a notice of claim was filed on April 11, 1973 and that more than 30 days had elapsed after the filing of the claim without any payment being made by the city.
Though Rottkamp v Young (21 AD2d 373, affd on opn at Appellate Division 15 NY2d 831) holds that, because the decision whether to do so is discretionary and quasi-judicial, no action will lie for refusal to issue a building permit, that holding does not bar the instant action. The distinguishing feature is that we deal in this action with a certificate of occupancy for a multiple residence, as to which the Legislature has expressly provided, in subdivision 5 of section 302 of the Multiple Residence Law that “A certificate, a record in the department, or a statement signed by the head of the department that a certificate has been issued, may be relied upon by every person who in good faith pur
Nor can it properly be dismissed under subdivision 5 on Statute of Limitations grounds. The Appellate Division held that the word “event” as used in the clause “the happening of the event upon which the claim is based” contained in section 50-i (subd 1, par c) of the General Municipal Law, must “be deemed to be the issuance of the certificate of occupancy in July, 1964, not the destruction of the building by fire in 1973”. It reached that conclusion on the basis of its own earlier decision in Doyle v 800, Inc. (72 AD2d 761, supra), which in turn relied upon the review by the Fourth Department in Erickson v Town of Henderson (30 AD2d 282) of the legislative history of the act (L 1959, ch 788) by which section 50-i was added to the General Municipal Law. Simply put, the Erickson review of legislative history was not addressed to the instant question and Doyle’s use of it without closer evaluation of the issue in Erickson is clearly erroneous. Unless legislative intent is to be changed by judicial fiat, intentional or unintentional, Doyle’s error should now be corrected by a holding that, as the Legislature clearly intended, the word “event” in the quoted clause is synonymous with “accident” and limitations, therefore, do not begin to run until “the negligent act produced injury to the plaintiffs” (Sexstone v City of Rochester, supra).
Under consideration in Erickson was the fact that a cause of action for wrongful death did not under prior law “arise” or “accrue” until appointment of an estate representative (Christian v Village of Herkimer, 5 AD2d 62,
The result reached in Doyle and in the instant case is, however, wholly inconsistent with the legislative understanding of the way in which.the word “event” was used. The study upon which the proposed new section 50-i was based appears in the report beginning at page 51 and contains irrefutable evidence that the words “happening of the event” were used to mean the injury-producing event, i.e., the time of the accident, not of the negligent act. Thus the conclusion of the study (at pp 60-62) stated that as to the time within which an action must be brought the common provision was one year but that period ran variously from (a) the date of the accident, (b) the accrual of the cause of action, or (c) the filing of a notice of claim. It then noted that “such decisional law as exists uniformly holds that the provision ‘from the date the cause of action accrued’ is to be interpreted as ‘from the date of the accident’ ” (at pp 61; emphasis supplied), that under subdivision 5 of section 50-e
Nor can it properly be argued that the legislative history should not be referred to because the word “event” is unambiguous. In the first place, the word is modified by the phrase “upon which the claim is based.” Since there can be no claim without both breach of duty and injury, “the event” (emphasis supplied) upon which a claim is based is, logically, the time of the injury or accident, as the Legislature intended, and as we, in other contexts have held (Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102, 1103 [“the cause or causes of action, if any, accrued at the time of the sustaining of injury”]; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300 [“It is only the injury to person or property arising from negligence which constitutes an invasion of personal right, protected by law, and, therefore, an actionable wrong”] [emphasis in original]). Ignoring the article “the”, one could perhaps argue that “the event” is the combination of breach and injury, but by no stretch of logic can it be said that “event” means only and unambiguously the breach of duty without more. Moreover, as we held in New York State Bankers Assn. v Albright (38 NY2d 430, 436): “It has been said often, but with less than meticulous analysis, that an ‘unambiguous’
Here, as Justice Gagliardi noted in denying the motion, to hold plaintiff’s action barred produces the absurd result “that plaintiff’s cause of action was time barred years before he became the owner of the apartment building, years before the fire occurred, and that the cause of action existed only at a time when plaintiff did not have any standing to bring it.” As former Chief Judge Breitel observed, dissenting from the now overruled majority decision in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, 346-347), “[I]t is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one. In those torts which give rise to a cause of action even without or before palpable damage, the limitations run from the commission of the wrong but there is also instanter a cause of action accrued as in libel, trespass and the like”.
Finally, it will not do to argue that to count the limita
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.
Order affirmed, with costs.