Vargas v. City of New York

Full title: JUDITH VARGAS, Respondent-Appellant, v. CITY OF NEW YORK…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 6, 1995

217 A.D.2d 409 (N.Y. App. Div. 1995)

628 N.Y.S.2d 1016

Opinion

July 6, 1995

Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).

Concur — Ellerin, J.P., Ross, Nardelli and Mazzarelli, JJ.

Tom, J., dissents in a memorandum as follows:

I respectfully dissent and would modify the judgment of the IAS Court to the extent of vacating that portion of the judgment awarding plaintiff damages for conscious pain and suffering and dismissing that cause of action. I find that the IAS Court erred in concluding that the 90-day period for filing the Notice of Claim had been tolled "at least until the time within which such a Notice was actually served"; and that plaintiff's failure to move to file a late Notice of Claim until approximately 8 years later, despite being put on notice by defendant's answer within 1 year and 90 days that a Notice of Claim had not been filed, is fatal to her claim ( see, Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256; Shoy v. St. Lukes Roosevelt Hosp. Ctr., 200 A.D.2d 366, lv dismissed 84 N.Y.2d 847).