Bernardez v. Federal Deposit Insurance

— Judgment, Supreme Court, New York County (Fraiman, J.), entered August 5,1983, granting defendant’s motion to dismiss the complaint as time barred, affirmed, with costs and disbursements.

Subdivision 3 of section 625 of the Banking Law provides that an action by claimants against a receiver of a failed bank for recovery upon a nonapproved claim must be filed “[a]t the expiration of eighty days after the last date fixed by the superintendent for the presentation of claims and at any time within six months thereafter”. This requirement has been construed to be a condition precedent to the institution of an action rather than a Statute of Limitations. (Zuroff v Westchester Trust Co., 273 NY 200, 203.) Plaintiffs, whose timely action in the Federal courts for the same claim as is asserted here was dismissed because of lack of subject matter jurisdiction, claim that CPLR 205 (subd [a]) permits the filing of a new action in the State court within six months after the termination of the prior action when the previous action was dismissed for, inter alia, lack of subject matter jurisdiction.

On that issue, however, Carr v Yokohama Specie Bank (272 App Div 64, affd 297 NY 674) is dispositive. There, the court held that the ameliorative tolling or extension provisions of the then Civil Practice Act did not apply where the time period within which a claim must be filed is viewed as a condition precedent, rather than a Statute of Limitations. Conceding that the rule was drastic, and citing Zuroff (supra), the court stated (p 67), the “provision that the Superintendent shall have no power to accept any claim presented after the date specified operates as a prohibition.” The court added (p 69) that the Legislature apparently intended to prevent a situation where a multitude of investors could not “obtain their liquidation dividends for a protracted length of time.”

While, concededly, the availability of deposit insurance and the procedures now in place militate against the likelihood that depositors will remain without their funds for any significant period of time, the statute, when drafted, had a legitimate purpose, is free from constitutional infirmity, and must thus be enforced by the courts. If subdivision 3 of section 625 of the Banking Law no longer serves the purpose for which it was enacted that is a matter for the Legislature, not the judiciary. (See Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139, 142.) George v Mt. Sinai Hosp. (47 NY2d 170) and Carrick v Central Gen. Hosp. (51 NY2d 242), upon which the dissent relies, are inapplicable here, since they concern the Statute of Limitations and not a condition precedent. Finally, the courts have held, even where constructive notice is received within the applicable time period, that a failure to comply with a condition precedent is fatal. (See, e.g., Pugh v Board of Educ., 30 NY2d 968.) Concur — Murphy, P. J., Sullivan, Silverman and Fein, JJ.