Andersen v. Long Island R.R.

• Decision Date: 28 April 1983
• Citation: 463 N.Y.S.2d 407,450 N.E.2d 213,59 N.Y.2d 657
• Parties: , 450 N.E.2d 213 Harry E. ANDERSEN, as Administrator of the Estate of Arthur H. Andersen, Deceased, Appellant, v. LONG ISLAND RAILROAD, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 407

463 N.Y.S.2d 407

59 N.Y.2d 657, 450 N.E.2d 213

Harry E. ANDERSEN, as Administrator of the Estate of Arthur H. Andersen, Deceased, Appellant, v. LONG ISLAND RAILROAD, Respondent, et al., Defendants.

Court of Appeals of New York.

April 28, 1983.

E. Allan Riebesehl and John P. Kle, Mineola, for appellant.

Mitchell Kaufman and Seymour H. Metnick, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 88 A.D.2d 328, 453 N.Y.S.2d 203, should be affirmed, with costs.

The factual and procedural background out of which this appeal arises is set forth in the opinion at the Appellate Division (88 AD2d 328).

The 1976 amendment to section 1276 of the Public Authorities Law did not abolish the requirement that there be presented a demand to be followed by a 30-day waiting period prior to the institution of an action such as the present. Before that amendment, subdivisions 1, 2 and 6 provided as follows:

"Actions against the authority.

"1. As a condition to the consent of the state to such suits against the authority, in every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof.

"2. An action against the authority founded on tort shall not be commenced more than one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been served on the authority within the time limited by and in compliance with all the requirements of section fifty-e of the general municipal law * * *

"6. Each subsidiary corporation of the authority shall be subject to the provisions of this section as if such subsidiary corporation were separately named herein, provided, however, that a subsidiary corporation of the authority which is a stock corporation shall not be subject to the provisions of this section except with respect to those causes of action arising on and after the first day of the twelfth calendar month following that calendar month in which such stock corporation becomes a subsidiary corporation of the authority."

On September 1, 1976 (L.1976, ch. 745, § 4), subdivision 6 was amended to read: "6. The provisions of this section which relate to the requirement for service of a notice of claim shall not apply to a subsidiary corporation of the authority. In all other respects, each subsidiary corporation of the authority shall be subject to the provisions of this section as if such subsidiary corporation were separately named herein, provided, however, that a subsidiary corporation of the authority which is a stock...