Barnes v. County of Onondaga, 1

• Decision Date: 07 November 1984
• Docket Number: No. 1,No. 2,1,2
• Citation: 481 N.Y.S.2d 539,103 A.D.2d 624
• Parties: Cheryl BARNES, Individually, Appellant, and as Parent and Natural Guardian of Shawn Barnes, an infant, and as the Administratrix of the Estate of Heather Barnes, Plaintiffs, v. The COUNTY OF ONONDAGA, the County of Onondaga Sheriff, John Dillon, and the Town of Clay, Respondents. (Appeal) Cheryl BARNES, Individually and as Parent and Natural Guardian of Shawn Barnes, an infant, Plaintiffs, and as Administratrix of the Estate of Heather Barnes, Appellant, v. The COUNTY OF ONONDAGA and the Onondaga County Sheriff, John Dillon, Respondents, et al., Defendants. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 539

481 N.Y.S.2d 539

103 A.D.2d 624

Cheryl BARNES, Individually, Appellant, and as Parent and Natural Guardian of Shawn Barnes, an infant, and as the Administratrix of the Estate of Heather Barnes, Plaintiffs, v. The COUNTY OF ONONDAGA, the County of Onondaga Sheriff, John

Dillon, and the Town of Clay, Respondents.

(Appeal No. 1.)

Cheryl BARNES, Individually and as Parent and Natural Guardian of Shawn Barnes, an infant, Plaintiffs, and as Administratrix of the Estate of Heather Barnes, Appellant, v. The COUNTY OF ONONDAGA and the Onondaga County Sheriff, John

Dillon, Respondents,

et al., Defendants. (Appeal No. 2.)

Supreme Court, Appellate Division Fourth Department.

Nov. 7, 1984.

James G. Distefano, Syracuse, for appellant.

Sugarman, Wallace, Manheim & Schoenwald, Syracuse (Samuel Vulcano, Syracuse, of counsel), for respondents County of Onondaga and Sheriff.

Greene, Hershdorfer & Sharpe, Syracuse (Victor Hershdorfer, Syracuse, of counsel), for respondent Town of Clay.

Before CALLAHAN, J.P., and DENMAN, BOOMER, GREEN and SCHNEPP, JJ.

CALLAHAN, Justice Presiding.

These appeals stem from plaintiff's attempt to serve late notices of claim against the County of Onondaga (County), the Sheriff of Onondaga County (Sheriff) and the Town of Clay (Town) in actions arising out of an automobile accident which occurred on October 28, 1978. On that date, plaintiff Cheryl Barnes, her infant daughter Heather, and son Shawn, were passengers in an automobile which was involved in a head-on collision with another vehicle on Morgan Road, a County highway, in the Town of Clay. As a result of the accident, plaintiff suffered serious physical injuries which rendered her a quadriplegic, her 10-day old daughter was killed and her 3-year old son was seriously injured. In October, 1981, plaintiff, both in her individual capacity and as parent and natural guardian of Shawn Barnes and as administratrix of the estate of Heather Barnes, commenced actions sounding in negligence against, inter alia, the County, Sheriff and the Town. The actions on behalf of the estate of Heather Barnes were for wrongful death and for conscious pain and suffering.

By motion returnable October 19, 1981, plaintiff sought leave to serve a late notice of claim against the County, Sheriff and Town in accordance with section 50-e of the General Municipal Law. In her moving papers, plaintiff asserted that the delay in filing a timely notice of claim was due to her medical condition, the quadriplegia which rendered her totally disabled from the date of the accident to the time of the application, and mental problems. She alleged that as a result of the accident she not only suffered serious injuries but suffered from emotional depression, was on constant medication and had not been concerned with any of her legal rights. In opposing plaintiff's application, respondents contend it was untimely and cross-moved to dismiss the complaint. Special Term (1) granted permission to file a late notice of claim on behalf of Shawn Barnes; (2) denied permission to file a late notice of claim on behalf of the infant decedent Heather and dismissed the causes of action commenced on her behalf; and (3) ordered that a fact finding hearing be held in accordance with Matter of Hurd v. County of Allegany, 39 A.D.2d 499, 336 N.Y.S.2d 952 to determine the period of time, if any, during which plaintiff was disabled due to mental impairment. Plaintiff appeals from so much of this order as dismissed the infant-decedent's cause of action for conscious pain and suffering. There is no cross-appeal from this order.

At the fact finding hearing, plaintiff testified that following the accident she was hospitalized for six months at St. Joseph's Hospital. While at the hospital, she learned that her 10-day old daughter had been killed in the accident and that she, herself, would never walk again. She was discharged to the Upstate Medical Center where she was attended by a specialist in rehabilitation for another six month period. In addition to her other physical problems, she sustained facial scarring and severe head disfigurement which caused her to shy away from people. She testified that she was depressed, cried constantly and has never recovered from the loss of her baby. She first contacted a lawyer about the accident in August of 1981.

Dr. Leonard Goldfarb, a licensed psychiatrist, testified that he first saw plaintiff on January 16, 1979 in St. Joseph's Hospital. At that time she was suffering from a "posttraumatic depression". In response to a question as to whether or not plaintiff was, in his opinion, able to function in society, Dr. Goldfarb responded: "At the time I saw her, she was in bed. She was paralyzed from the neck down.... She was very much worried about the problems that she was having.... She was really having a great deal of difficulty in just being able to function." In his opinion, plaintiff's overall ability to function in society was "severely" limited based upon her injuries, physical condition, "mental problems that she was having at that time". He continued to treat her after her discharge from the hospital and indicated that at the time of the hearing plaintiff was "just healing a very severe depressive reaction" due to the loss of her child and her physical injuries. In his opinion, plaintiff was suffering from "a psychiatric disorder" from the accident which "absolutely" limited her ability to function in society. On cross-examination it was established that plaintiff's depressive reaction was "more serious than a neurosis".

Following the hearing the court found that: "Although the Plaintiff Cheryl Barnes was shockingly injured in a physical nature, she failed to show that she was insane under the provisions of 208 of the CPLR, as interpreted by McCarthy v. Volkswagen of America" (55 N.Y.2d 543, 450 N.Y.S.2d 457, 435 N.E.2d 1072). An order was entered dismissing plaintiff's complaint against the municipal defendants and denying her individual application to file a late notice of claim.

It is well settled that where a notice of claim has not been served within the 90-day period specified in section 50-e (subd. 1) of the General Municipal Law, an individual possessing a tort claim against a public corporation may apply to the court pursuant to section 50-e (subd. 5) for an extension of time within which to serve such notice upon the defendant (Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 258, 434 N.Y.S.2d 138, 414 N.E.2d 639). The Legislature has empowered the court with discretionary authority to extend the time to serve a notice of claim (General Municipal Law § 50-e, subd. 5 as amd. by L.1976, ch. 745, § 2). The court's authority, however, has its limitations. The extension may not exceed the "time limited for the commencement of an action by the claimant against the public corporation" (General Municipal Law § 50-e, subd. 5), which is "one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death." (General Municipal Law § 50-i, subd. 1). Accordingly, unless the statute has been tolled, the application for the extension must be made not more than one year and ninety days after the cause of action accrued (Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331; see also Matter of Donovan v. County of Niagara, 100 A.D.2d 740, 473 N.Y.S.2d 635). Since the accident herein occurred on October 28, 1978 and plaintiff's application was made in October, 1981, nearly three years after the accident, plaintiff's application is untimely as a matter of law unless there is a tolling of the statute of limitations (see CPLR 208).

CPLR 208 provides that "If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues.... the time within which the action must be commenced shall be extended to three years after the disability ceases...." The legislative history of the statute indicates that the Legislature intended the toll for insanity to be narrowly interpreted (McCarthy v. Volkswagen of America, Inc., supra, 55 N.Y.2d p. 548, 450 N.Y.S.2d 457, 435 N.E.2d 1072). It is designed to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an overall inability to function in society. The provisions of CPLR 208 tolling the statute of limitations period for insanity is a concept equated with unsoundness of mind (De Gogorza v. Knickerbocker Life Ins. Co., 65 N.Y. 232, 237) and should not be read to include the temporary effects of medications administered in the treatment of physical injuries (Eisenbach v. Metropolitan Transp. Auth., 62 N.Y.2d 973, 975, 479 N.Y.S.2d 338, 468 N.E.2d 293), nor can the existence of a post traumatic neurosis be equated with the term "insanity" as used in section 208 (Eisenbach v. Metropolitan Transp. Auth., supra, at p. 975, 479 N.Y.S.2d 338, 468 N.E.2d 293; McCarthy v. Volkswagen of America, Inc., supra, 55 N.Y.2d at p. 549, 450 N.Y.S.2d 457, 435 N.E.2d...