Barrett v. State

• Decision Date: 17 September 1990
• Citation: 161 A.D.2d 61,560 N.Y.S.2d 302
• Parties: Valerie BARRETT, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 302

560 N.Y.S.2d 302

161 A.D.2d 61

Valerie BARRETT, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 17, 1990.

Fuchsberg & Fuchsberg, New York City (Martin Diennor and Abraham Fuchsberg, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Michael S. Buskus, of counsel), for respondent.

Before BRACKEN, J.P., and EIBER, SULLIVAN and ROSENBLATT, JJ.

SULLIVAN, Justice.

On this appeal, we are called upon to determine whether the personal representative of a deceased infant may assert the two-year tolling provision for infancy set forth in Court of Claims Act § 10(5) in filing a claim on behalf of the infant's estate to recover damages for the conscious pain and suffering experienced by the infant prior to death. We answer the question in the affirmative.

The relevant facts are not in dispute. The deceased infant, Kellian Barrett, was born on August 3, 1982, at the State University Hospital of Downstate Medical Center (hereinafter Downstate) in Brooklyn. It is claimed that, as a result of the malpractice of Downstate's staff before, during and after her birth, Kellian suffered brain damage, mental retardation, motor retardation, hydrocephaly, quadriplegia and seizures. Her condition necessitated that she undergo multiple surgical procedures, and Kellian ultimately died on August 17, 1985. Valerie Barrett, the mother of the deceased infant and the claimant herein, was appointed administratrix of Kellian's estate on December 3, 1986. On or about December 26, 1986, the claimant filed the instant claims on behalf of Kellian's estate to recover damages for Kellian's conscious pain and suffering and wrongful death. In its answer, the State asserted, inter alia, the affirmative defense that the claim was not timely filed. The State subsequently moved to dismiss the claim to recover damages for conscious pain and suffering as untimely, reasoning that it had not been filed within 90 days of the infant's death as required by Court of Claims Act § 10(3). (It is undisputed that the wrongful death claim was timely filed.) The claimant opposed the motion and cross-moved to dismiss the State's affirmative defense of untimeliness, contending that the claim to recover damages for conscious pain and suffering was timely filed because the tolling period set forth in Court of Claims Act § 10(5) was applicable thereto. That portion of the statute provides as follows:

"If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed".

The claimant reasoned that, pursuant to the foregoing provision, Kellian had been under the legal disability of infancy at the time of the alleged malpractice, that the legal disability had been removed by her death, and that the filing of the claim to recover damages for conscious pain and suffering on behalf of her estate within two years of her death was therefore timely.

The claimant subsequently amended her cross motion to include an application for the alternative relief of deeming the claim timely filed nunc pro tunc under Court of Claims Act § 10(6). No issue with regard to the disposition of this application is raised on appeal.

After the submission of additional papers and oral argument, the Court of Claims granted the State's motion, denied the claimant's cross motion, and dismissed the claim to recover damages for conscious pain and suffering as untimely (see, Barrett v. State of New York, 143 Misc.2d 619, 541 N.Y.S.2d 680). In doing so, the court relied, inter alia, upon its own prior decision in Antoine v. State of New York, 103 Misc.2d 664, 426 N.Y.S.2d 917 and upon an extended examination of the legislative history of Court of Claims Act § 10(5). The claimant appealed. For the reasons which follow, we reverse the order of the Court of Claims insofar as appealed from, deny the State's motion, grant that branch of the claimant's cross motion which was to dismiss the affirmative defense of untimeliness, and reinstate the claim to recover damages for conscious pain and suffering.

We begin by reiterating the now well-settled principle that Court of Claims Act § 10(2), which provides that a claim against the State for wrongful death (or a written notice of intention to file such a claim) must be filed within 90 days after the appointment of the personal representative of the decedent, does not apply to a survival action to recover for the injured party's conscious pain and suffering (see, DeFilippis v. State of New York, 157 A.D.2d 826, 550 N.Y.S.2d 728; Kaplan v. State of New York, 152 A.D.2d 417, 549 N.Y.S.2d 853). Rather, survival actions are governed by Court of Claims Act § 10(3), which requires that the claim or notice of intention to file a claim be filed within 90 days "after the accrual of such claim". It has been judicially recognized that the foregoing time periods constitute jurisdictional conditions precedent to the maintenance of such claims rather than mere Statutes of Limitation (see, Coleman v. Webb, 158 A.D.2d 500, 551 N.Y.S.2d 263; Greenspan Bros. v. State of New York, 122 A.D.2d 249, 505 N.Y.S.2d 173; Byrne v. State of New York, 104 A.D.2d 782, 480 N.Y.S.2d 225). Accordingly, they are to be strictly construed and cannot be extended by resort to the tolling provisions contained in the CPLR (see, Coleman v. Webb, supra; DeFilippis v. State of New York, supra ).

While we are mindful of the foregoing principles, we nevertheless recognize that the tolling provision at issue in this case is not borrowed from some other body of civil law, but is itself part of Court of Claims Act § 10. Hence, where a claimant is laboring under a legal disability, such as infancy or incompetency, at the time the claim accrues, the claim need not be presented until two years after the disability is removed (see, Court of Claims Act § 10[5]; I Weinstein-Korn-Miller, NY Civ Prac p 208.03a). The plain language of the statutory toll permits its assertion by the deceased infant's personal representative on behalf of the estate herein. At the time the claim for Kellian Barrett's conscious pain and suffering accrued, Kellian was an infant and therefore was under a legal disability. Under similar circumstances, the courts have interpreted Court of Claims Act § 10(5) as dispensing with the 90-day filing requirement set forth in Court of Claims Act § 10(3), regardless of whether that 90-day period is measured from the date of injury or the date of removal of the disability (see, e.g., Boland v. State of New York, 30 N.Y.2d 337, 333 N.Y.S.2d 410, 284 N.E.2d 569 [holding that a patient involuntarily committed to a mental institution at the time of injury was required only to file a claim within two years, rather than 90 days, after the disability was removed]; Crawford v. State of New York, 37 A.D.2d 450, 326 N.Y.S.2d 449 [holding that a person under the former legal disability of imprisonment at the time of injury had timely filed a claim within two years after removal of the disability, and that filing within 90 days after the accident was unnecessary]; Weber v. State of New York, 267 App.Div. 325, 45 N.Y.S.2d 834 [holding that an infant had two years after reaching the age of majority within which to timely file a claim and that filing within 90 days of the accident was not required]. None of these decisions suggests that a different result would be required if the person under the disability died and the survival claim was pursued by the decedent's estate. Kellian's disability of infancy was removed by her death on August 17, 1985 (see, Barnes v. County of Onondaga, 103 A.D.2d 624, 481 N.Y.S.2d 539, affd. 65 N.Y.2d 664, 491 N.Y.S.2d 613, 481 N.E.2d 245; Gibbons v. City of Troy, 91 A.D.2d 707, 457 N.Y.S.2d 950). Hence, in accordance with the plain language of the statute and in conformity with the spirit of the foregoing decisions, the claim for conscious pain and suffering which belonged to the infant and survived her death (see, EPTL 11-3.2[b] may be timely presented on behalf of her estate within two years after her death (see, Aiello v. State of New York, Ct.Cl., Feb. 5, 1986, Lengyel, J.). Indeed, to conclude otherwise would place the deceased infant's estate at a distinct procedural disadvantage, for while the infant, if living, would have two years from the date of reaching the age of majority within which to file a claim for conscious pain and suffering, the estate of that same infant, solely by reason of the infant's untimely death, would at best be relegated to a 90-day period from the date of death within which to seek the identical relief. Nothing in the text of Court of Claims Act § 10(5) authorizes or supports such a distinction, nor does the reasoning of the State and the Court of Claims in this case persuade us to fashion a rule of disparate treatment between living parties who formerly were under legal disabilities and the estates of deceased persons whose legal disabilities have been removed by reason of death.

The State maintains, and the Court of Claims determined, that the decision in Antoine v. State of New York, 103 Misc.2d 664, 426 N.Y.S.2d 917, supra and the legislative history of Court of Claims Act § 10(5) preclude a deceased infant's estate from asserting the statutory disability toll. We disagree. It is true that Antoine involved facts similar to those at bar and resulted in a determination that a deceased infant's estate was barred from maintaining a claim to recover damages for pain and suffering because no filing occurred within 90 days of accrual of the claim. However, the applicability of the tolling provision of Court of Claims Act § 10(5) was neither raised by the parties nor considered by the court in that case; hence, the decision has no precedential value with respect to that issue. Moreover, the decision in Antoine concededly relied upon a misperception of the factual circumstances in Cruz v....