Bernardez v. City of New York

• Decision Date: 17 April 1984
• Citation: 474 N.Y.S.2d 728,100 A.D.2d 798
• Parties: Yolanda BERNARDEZ, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 728

474 N.Y.S.2d 728

100 A.D.2d 798

Yolanda BERNARDEZ, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

April 17, 1984.

D. Segal, New York City, for plaintiff-appellant.

D. Schorr, Jamaica, for defendants-respondents.

Before SANDLER, J.P., and SULLIVAN, ROSS, LYNCH and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered June 1, 1982, granting plaintiff's motion for reargument and upon reargument adhering to its prior decision of July 20, 1981 which denied plaintiff's motion to amend the complaint and granted defendants' cross motion to dismiss the complaint, affirmed, without costs, and without prejudice to the commencement by plaintiff of a new action based upon the same transaction or occurrence pursuant to CPLR § 205(a) within six months after service on plaintiff of a copy of this order.

On May 27, 1979, decedent Abel Bernardez was admitted to Sydenham Hospital for treatment. He died in that hospital on May 28, 1979, allegedly as a result of injuries sustained when he fell from his hospital bed. On July 11, 1979 his widow, Yolanda Bernardez, filed notices of claim with the defendants, The City of New York and New York City Health and Hospitals Corporation (Corporation), describing the claim as one for "wrongful death and pain and suffering of deceased Abel Bernardez, at Sydenham Hospital." The notice of claim inaccurately described Yolanda Bernardez as administratrix of the estate of Abel Bernardez.

This action for damages due to pain and suffering and wrongful death as a result of the defendants' alleged negligence was commenced on August 26, 1980 by the service of a summons. A verified complaint was served on September 28, 1980. Both the summons and the verified complaint described the plaintiff as Yolanda Bernardez, individually, and Yolanda Bernardez, as administratrix of the estate of Abel Bernardez, deceased, the latter description being inaccurate at that time. By motion returnable May 27, 1981 plaintiff moved for leave to amend her complaint to reflect the issuance to her on February 18, 1981 of letters of administration, a copy of which was annexed to the motion papers, and to add two additional causes of action. Defendants cross-moved to dismiss the complaint, alleging that the original complaint was jurisdictionally defective in that plaintiff was not at the time the complaint was served an appropriate person to commence the action (EPTL §§ 5-4.1 and 11-3.2[b] ), and that the proposed amended complaint was barred by the one year and ninety day statute of limitations for tort actions against the City and the New York City Health and Hospitals Corporation.

In a memorandum decision dated July 15, 1981 Special Term denied plaintiff's motion to amend the complaint and granted defendants' cross motion to dismiss, finding that the action was improperly commenced before the issuance of letters of administration, and that the statute of limitations had expired prior to their issuance on February 18, 1981.

In support of a motion for reargument plaintiff's counsel stated in an affidavit that she and the decedent had been residents of Honduras, Central America before they emigrated to the United States, and that this circumstance had rendered it difficult and time-consuming for plaintiff to submit to the Surrogate's Court various documents required by that court for her appointment as administratrix, which included a marriage certificate and proof of birth of their children. In a brief memorandum opinion granting plaintiff's motion for reargument, Special Term adhered to its original decision, observing that no affidavit by the plaintiff had been submitted to the court.

We affirm, but do so without prejudice to plaintiff's commencement of a new action based upon the same transaction or occurrence pursuant to CPLR § 205(a) within six months after service of a copy of this order on plaintiff.

Preliminarily, we note that Special Term erred to the extent to which its opinion concluded that plaintiff's wrongful death action against New York City was barred by the statute of limitations, the correct period for such an action against New York City being two years. See Collins v. City of New York, 55 N.Y.2d 646, 446 N.Y.S.2d 258, 430 N.E.2d 1311; General Municipal Law § 50-i as amended effective September 1, 1981. This error is without practical significance since it is apparent that the complaint does not state a cause of action in any respect against The City of New York. See Brennan v. City of New York, 88 A.D.2d 871, 452 N.Y.S.2d 36, affd. 59 N.Y.2d 791, 464 N.Y.S.2d 731, 451 N.E.2d 478.

The dispositive issue presented on this appeal is in all essential respects identical to that determined by the Court of Appeals in Carrick v. Central General Hospital, 51 N.Y.2d 242, 434 N.Y.S.2d 130, 414 N.E.2d 632. Carrick involved a wrongful death and personal injury action brought against a private hospital less than one month before the two-year statute of limitations for wrongful death actions would have expired by the widow of the deceased at a time when letters of administration had not yet been issued authorizing suit. The plaintiff denominated herself as "proposed administratrix" in the complaint. The action was dismissed on the ground that the absence of a duly appointed administrator was fatal to both claims. Within two weeks after this dismissal, plaintiff, having in the meantime been issued the necessary letters of administration, commenced a second action. The defendant again moved to dismiss, alleging that the causes of action were barred by the applicable statute of limitations.

The issue presented to the Court of Appeals was whether or not the wrongful death action could be sustained as authorized by CPLR § 205(a), which provides in pertinent part: "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence ... within six months after the termination." In an opinion dispositive of the issue before us, the Court of Appeals held that the action was timely commenced pursuant to that section.

In reaching this conclusion the court distinguished its prior decision in Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8, which it described as follows (51 N.Y.2d at 248, 434 N.Y.S.2d 130, 414 N.E.2d 632):

"Goldberg...