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12/29/89 John J. Jindra Et Al., v. the City of Chicago

December 29, 1989

JOHN J. JINDRA ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE (ROGER FORTE ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

550 N.E.2d 1, 193 Ill. App. 3d 31, 140 Ill. Dec. 519 1989.IL.2051

Appeal from the Circuit Court of Cook County; the Hon. Dean Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from an order dismissing counts I and III of plaintiffs' first amended complaint for failure to satisfy the conditions for suit against a municipality pursuant to section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8-102). We affirm.

Plaintiffs, John J. Jindra, Daniel J. Rodriguez and Mohammed Patel, filed the instant suit on September 28, 1986, alleging, inter alia, the violation of their civil rights by certain police officers.

The City of Chicago moved to dismiss counts I and III, the only counts at issue here, based on plaintiffs' failure to serve timely written notices of injury upon the clerk of the City of Chicago (the clerk) as to plaintiffs Jindra and Rodriguez and that no notice was ever served on behalf of plaintiff Patel, as required by section 8-102 (Ill. Rev. Stat. 1985, ch. 85, par 8-102).

Plaintiffs contend that the required notices of injury for each plaintiff were personally served on both the clerk and the corporation counsel for the City of Chicago (corporation counsel) on November 6, 1985, by Daniel K. Tracy, and affidavits of personal service were signed by Tracy and notarized. The city contends that the notices of injury for Jindra and Rodriguez were served on November 12, 1985, four days after the statutory period had elapsed.

At an evidentiary hearing on June 9, 1987, the city produced the original notices served by plaintiffs Jindra and Rodriguez at the city clerk's office. They were time stamped November 12, 1985, 11:20 a.m. The city also produced Mary Frances Meyer, a licensed investigator for the city, whose job is to accept and stamp personal injury notices at the office of the city clerk and to maintain the records of those notices. Ms. Meyer testified that no notice had ever been received from plaintiff Patel and that under the procedures followed by her office, notices are stamped immediately upon filing. Ms. Meyer acknowledged that she was not present when Tracy delivered the notices of injury.

Daniel G. Tracy testified for plaintiffs, stating that notices had been filed with both the city clerk and the corporation counsel for all three plaintiffs on November 6, 1985, which was within the statutory time period, and that the notices delivered to the corporation counsel's office were stamped November 6, 1985. Tracy further stated that on November 6, 1985, he signed affidavits attesting to service of the documents; that the documents and affidavits were served on the city clerk and the corporation counsel and that he did not ask for any stamped copies back.

The trial court ruled that plaintiffs had failed to prove that they had filed notices with the clerk in timely fashion and granted the city's motion to dismiss counts I and III with prejudice. Plaintiffs now bring this appeal.

The sole issue on appeal is whether the trial court's finding that plaintiffs' notices to the city clerk were not served by November 8, 1985, one year after plaintiffs' alleged injury, was contrary to the manifest weight of the evidence.

Section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. ...


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