Bourguignon v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MANGANO
• Citation: Bourguignon v. City of New York, 549 N.Y.S.2d 743, 157 A.D.2d 644 (N.Y. App. Div. 1990)
• Decision Date: 08 January 1990
• Parties: Joseph BOURGUIGNON, Respondent, v. The CITY OF NEW YORK, et al., Appellants.

Page 743

549 N.Y.S.2d 743

157 A.D.2d 644

Joseph BOURGUIGNON, Respondent, v. The CITY OF NEW YORK, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Jan. 8, 1990.

Victor Kovner, Corp. Counsel, New York City (Larry A. Sonnenshein, Dana Martine Robbins and Julian Kalkstein, of counsel), for appellants.

Glaser, Shandell & Blitz, New York City (Shoshana T. Bookson, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated August 16, 1988, as denied that branch of their motion which was to dismiss the second cause of action to recover damages for conscious pain and suffering.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the second cause of action is granted, and the second cause of action is dismissed.

The record reveals that the plaintiff's decedent died on January 24, 1982, and that the plaintiff was thereafter appointed as personal representative of the decedent. A notice of claim was served upon the defendants on or about May 17, 1982, seeking recovery, inter alia, for wrongful death and conscious pain and suffering. On or about April 19, 1988, the defendants moved, among other things, to dismiss the second cause of action to recover for the decedent's conscious pain and suffering. The Supreme Court denied this branch of the motion. We now reverse.

Inasmuch as the plaintiff failed to file a notice of claim with respect to the cause of action to recover for conscious pain and suffering within the 90-day period after the claim arose, the notice was untimely as regards that claim (see, ...