Andersen v. Long Island Rail Road

• Decision Date: 09 August 1982
• Citation: 88 A.D.2d 328,453 N.Y.S.2d 203
• Parties: Harry E. ANDERSEN, as administrator, etc., Respondent, v. LONG ISLAND RAIL ROAD, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 203

453 N.Y.S.2d 203

88 A.D.2d 328

Harry E. ANDERSEN, as administrator, etc., Respondent, v. LONG ISLAND RAIL ROAD, Appellant, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Aug. 9, 1982.

Metnick & Bernstein, P. C., New York City (Seymour H. Metnick and Mitchell Kaufman, New York City, of counsel), for appellant (in the Andersen appeal).

E. Allen Riebesehl, Mineola (John P. Kle, Mineola, of counsel), for respondent (in the Andersen appeal).

Rosenbaum, Lerman, Katz & Weiss, New York City (Wilson, Elser, Edelman & Dicker, New York City of counsel), for appellants (in the Fleming appeal).

Goldberg & Lysaght, New York City (Metnick & Bernstein, P. C., New York City of counsel), for respondent (in the Fleming appeal).

Before BRACKEN, J. P., and BROWN, NIEHOFF and RUBIN, JJ.

BROWN, Justice.

These appeals raise issues of statutory interpretation involving the provisions of section 1276 of the Public Authorities Law, which govern the commencement of actions against the Metropolitan Transportation Authority and its subsidiary corporations, including the Long Island Railroad which is a defendant in these actions. The relevant provisions of the statute, as originally enacted and amended through September 1, 1976, read as follows: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.

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"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 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 these appeals, the issues for our review are:

(1) whether the 1976 amendment to subdivision 6, which abolished the requirement of filing a formal notice of claim against the authority's subsidiary corporations set forth in subdivision 2, also eliminated the requirement set forth in subdivision 1, that a plaintiff allege in his complaint that at least 30 days have elapsed since a demand or claim was presented to the authority and that no adjustment or payment thereof has been made; and

(2) whether, in wrongful death actions against the authority and its subsidiary corporations, the applicable Statute of Limitations is the one-year period set forth in subdivision 2 of section 1276 of the Public Authorities Law, or the two-year period set forth in EPTL 5-4.1.

A brief statement of the facts in each of the cases before us is in order.

ANDERSEN v. LONG ISLAND RAILROAD

Arthur H. Andersen was killed by a Long Island Railroad train while he was crossing the tracks near the Syosset station at about 11:13 A.M. on August 23, 1978. Plaintiff Harry E. Andersen's summons and complaint to recover damages for wrongful death, both dated August 14, 1980, were served on the defendant railroad on August 15, 1980. Said defendant's answer asserted as affirmative defenses, inter alia, lack of subject matter jurisdiction and the Statute of Limitations.

Plaintiff moved for leave to amend his complaint to include a cause of action for punitive damages. By an order dated December 18, 1980, Justice ROBBINS denied plaintiff's motion, without prejudice to renewal at a later time, pending final resolution by the Court of Appeals of the question of whether punitive damages may be recovered in a wrongful death action. By notice of motion dated January 6, 1981, plaintiff moved for leave to reargue the above motion and for leave to serve an amended complaint. Defendant cross-moved for summary judgment dismissing plaintiff's complaint. By an order dated February 23, 1981, Justice ROBBINS directed that both motions be held in abeyance pending a hearing on the issue of whether the railroad had actual notice of the accident which caused plaintiff's decedent's death. At that hearing, the railroad's attorney conceded such actual notice.

Justice ROBBINS granted plaintiff's motion for reargument and for leave to serve an amended complaint, and denied the cross motion for summary judgment dismissing the complaint. He held that although "there was no formal notice to the at least 30 days prior to the commencement of the suit and no mention of such notice was placed in the complaint", the "intent and purpose" of the requirements of subdivision 1 had been met. In so holding, Justice ROBBINS noted that the railroad had actual notice of the accident immediately upon its occurrence, that the Nassau County Police had investigated it, and that the railroad had conducted a thorough investigation of its own. In addition, the court, citing two decisions of this court (Santaniello v. De Francisco, 73 Misc.2d 934, 342 N.Y.S.2d 916, on rearg. 74 Misc.2d 229, 344 N.Y.S.2d 589, affd. 44 A.D.2d 831, 355 N.Y.S.2d 569; O'Connor v. Long Is. R.R., 63 A.D.2d 1015, 406 N.Y.S.2d 502), determined that plaintiff's action was governed by the two-year Statute of Limitations for wrongful death actions and not the one-year period of subdivision 2 of section 1276. The railroad has appealed from the order.

On March 16, 1981, plaintiff served his amended complaint. The defendant railroad's answer asserted, inter alia, the following affirmative defenses: (1) lack of in personam and subject matter jurisdiction; (2) the Statute of Limitations; (3) the failure to make an appropriate demand or claim pursuant to section 1276 of the Public Authorities Law; and (4) the failure to state a cause of action. Plaintiff then moved, inter alia, to dismiss the above affirmative defenses. In a memorandum decision, Justice SPATT held that this portion of plaintiff's motion should be granted. His determination, for the most part, was based on the ground that the prior decision of Justice ROBBINS was the law of the case. The railroad has appealed from the order entered upon Justice SPATT's decision, "to protect itself in the event that it is successful on its appeal of the prior order of Mr. Justice Robbins."

FLEMING v. LONG ISLAND RAILROAD

Mark Fleming was injured on April 10, 1979, at 9:30 A.M., while leaving a Long Island Railroad train at the Jamaica station. He and his wife, Sarah Fleming, served their summons and complaint on the defendant railroad on July 26, 1979. The only affirmative defense contained in its answer was that of comparative negligence. Plaintiffs took the deposition of Richard Herdter, a conductor for the railroad, who testified that he was present on the platform at the time of the accident and went to the aid of Mark Fleming. He thereafter completed an accident report in quintuplicate, which was standard procedure. On October 17, 1980, the railroad moved for summary judgment dismissing plaintiffs' complaint on the ground that they had failed to comply with the demand requirements of subdivision 1 of section 1276 of the Public Authorities Law. Plaintiffs opposed the motion and cross-moved for leave to amend their complaint to assert, nunc pro tunc, that a demand had been made. Justice BUSCHMANN granted defendant's motion and denied plaintiffs' cross motion. He held, on the basis of a then recent decision of the Supreme Court, Erie County (Niemczyk v. Pawlak, 98 Misc.2d 532, 414 N.Y.S.2d 285), that the 30-day demand requirement of subdivision 1 of section 1276 survived the 1976 amendment to subdivision 6 and that some demand or claim, although not rising to the level of a formal notice of claim, was required. He noted that plaintiffs "failed to present any evidence or even assert that a demand of any sort" was made upon the railroad. Plaintiffs have appealed from the resulting order.

In our analysis of the question common to both appeals, namely, the effect of the 1976 amendment to subdivision 6 of section 1276 of the Public Authorities Law on the 30-day demand rule of subdivision 1 of section 1276, we begin with the legislative history of the amendment, which was enacted as part of chapter 745 of the Laws of 1976. The common purpose of the various provisions of that chapter was to liberalize procedures in actions against municipal corporations and other...