FULLAM v. WESTCHESTER COUNTY PLAYLAND COMMISSION

In an action by appellant to recover damages for personal injuries, alleged to have been caused by the negligence of respondent in the operation of an amusement device at Playland, order dismissing appellant's amended complaint, on motion of respondent, unanimously affirmed, with $10 costs and disbursements. The amended complaint does not state a cause of action, in that it does not allege service of a notice of claim in the form required and within the time limited by statute (L. 1941, ch. 777, § 10; General Municipal Law, § 50-e), nor does it plead facts sufficient to excuse compliance with the statutory requirements. Appellant's contentions that the statutory provisions, requiring such notice as a condition precedent to the commencement of an action, are unconstitutional, since the accident complained of resulted from the conduct by respondent of proprietary, or commercial, and not of a governmental activity, may not be sustained. Such provisions, as applied to a public benefit corporation, are neither arbitrary nor discriminatory, insofar as appellant is concerned, nor do they deprive appellant of property without due process of law. (Cf. MacMullen v. City of Middletown, 187 N.Y. 37; Winter v. City of Niagara Falls, 190 N.Y. 198, and Thomann v. City of Rochester, 256 N.Y. 165. )