Caffaro v. Trayna
| Decision Date | 08 October 1974 |
| Citation | 319 N.E.2d 174,35 N.Y.2d 245,360 N.Y.S.2d 847 |
| Parties | , 319 N.E.2d 174, 71 A.L.R.3d 924 Josephine N. CAFFARO, as Executrix of John Caffaro, Deceased, Appellant, v. John TRAYNA, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Alfred S. Julien and David Jaroslawicz, New York City, for appellant.
Joseph T. Mirabel, Huntington, and Walter F. Wortman, Brooklyn, for respondent.
Does the fact that an independent action for wrongful death would be time-barred necessarily foreclose amendment of the complaint in a pending action for conscious pain and suffering to include the action for wrongful death? We hold that it does not.
During the period from September, 1966 to May, 1967 defendant physician treated the decedent for throat ailments. The treatment was not successful and in December, 1968 the decedent brought the present action in malpractice. While this action was pending, on June 24, 1969 the decedent died of carcinoma of the larynx, the condition which defendant allegedly had negligently failed to diagnose. For reasons which do not appear in this record, the decedent's will was not probated until September 18, 1972 on which day letters testamentary issued to the present plaintiff who was promptly substituted in the surviving action for personal injuries. It was not until the following January 15, however, that the substituted plaintiff moved to amend the complaint in the personal injuries action to add the cause of action for wrongful death. The present appeal is focused on the Appellate Division's affirmance of the denial of that motion to amend.
We recognize that historically the cause of action for wrongful death has been considered separate and distinct from the related cause of action for conscious pain and suffering. We also acknowledge that an independent action for wrongful death in this instance would have been time-barred by January 15, 1973 under the applicable Statute of Limitations--two years from the date of death (EPTL, Consol.Laws, c. 17--b, 5--4.1). Thus, unless the wrongful death action can be saved by inclusion with the surviving action for the decedent's personal injuries, it has been lost.
The cause of action for wrongful death is the creature of statute rather than of common law, first created by the British Parliament in Lord Campbell's Act of 1846, then established in our State by chapter 450 of the Laws of 1847, and now embodied in EPTL 5--4.1. In the same section by which the statutory cause of action is created it is provided that any such action must be commenced within two years after the decedent's death. Were there no further applicable statutory provisions, the Statute of Limitations having been raised, the Trial Judge here would have had no choice but to deny the motion to amend as proposing a cause of action barred by the statute.
EPTL 11--3.3 (subd. (b), par. (2)), however, provides as follows: 'Where an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury, before verdict, report or decision, his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5--4.1.' By this provision the Legislature has given the personal representative the right, if an action has already been brought for conscious pain and suffering, to join the related cause of action for wrongful death. The question for our determination is whether, when so joined, the cause of action for wrongful death would nonetheless be barred by the two-year Statute of Limitations if application for the joinder is made more than two years after the decedent's death.
We first consider whether the cross reference in EPTL 11--3.3 (subd. (b), par. (2)) to 'the cause of action for wrongful death under 5--4.1' carries with it the time limitation set down in the latter section as a substantive part of that cause of action. The time limitation was expressed as a proviso when the action for wrongful death was created (L.1847, ch. 450), but by chapter 178 of the Laws of 1880 the form of expression in section 1902 of the Code of Civil Procedure () was changed--the cause of action was described in one sentence and the time limitation was reserved to a following, separate sentence, as now--'Such an action must be commenced within two years after the decedent's death.'
In Sharrow v. Inland Lines, 214 N.Y. 101, 108 N.E. 217, we held that this change in form of statutory expression was significant and that thereafter the restriction of time was a procedural limitation on the remedy and not part of the substantive right created by the statute (contrast, e.g., Romano v. Romano, 19 N.Y.2d 444, 280 N.Y.S.2d 570, 227 N.E.2d 389, in which we held that a statutory time limit was an integral part of the legislatively created cause of action to annul a marriage for fraud). So construed the reference to the Cause of action for wrongful death in EPTL 11--3.3 (subd. (b), par. (2)) does not import the two-year Statute of Limitations as an element of the cause of action.
But the matter cannot rest there. Although not a part of the substantive right, the two-year statute would still operate as a procedural bar to the remedy were it not for the provisions of CPLR 203 (subd. (e)). That section provides: 'A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.' Thus, as to the cause of action for wrongful death to be added by amendment of the complaint, this section, if applicable, takes over for purposes of determining from what date the period of limitation shall be computed. Under it that date is related back to the date the action for conscious pain and suffering was commenced. So, here, the wrongful death cause of action is not barred if CPLR 203 (subd. (e)) is available. 1
We turn then to the question of the applicability of CPLR 203 (subd. (e)) in the circumstances disclosed in this record. CPLR 203 (subd. (e)) applies 'unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences' on which the cause of action for wrongful death is predicated. No contention is advanced here that the pleadings in the personal injury action did not give the required notice of the transactions on which the wrongful death cause of action is based, and the record affords no ground for any such contention. Indeed, it would seem that any amendment authorized by EPTL 11--3.3 (subd. (b), par. (2))--under which death must have resulted from the same injury on which the action for personal injuries is based--will necessarily meet the notice prerequisite of CPLR 203 (subd. (e)).
Thus, we conclude that by reason of the application, in combination, of EPTL 11--3.3 (subd. (b), par. (2)) and CPLR 203 (subd. (e)) the executrix of this decedent's estate had the right to amend the complaint in the surviving action for personal injuries to include the cause of action for wrongful death notwithstanding that the motion for such amendment was made more than two years after the decedent's death. 2
We observe that policy considerations support the result dictated by our analysis of the relevant interrelated statutory provisions. Any Statute of Limitations reflects a policy that there must come a time after which fairness demands that a defendant should not be harried; the duration of the period is chosen with a balancing sense of fairness to the claimant that he shall not unreasonably be deprived of his right to assert his claim. Objectively, too, an inference is available that a genuine claim might normally be expected to have been made within the period of time selected. The balancing of these considerations (and perhaps others in certain instances) leads to the legislative choice of a specific time period. The recognition of such broad principles in the application of the relevant statutes here calls for permission to amend this complaint to include the wrongful death action. While considerations of fairness to the claimant estate might not require an extension beyond the customary two-year period following the claimant's death, and one might normally expect that means would have been found to assert this claim within that period, it cannot be said on this record that to allow the claim would work unfairness to this defendant. If there is here a provable claim, only unfairness to defendant or inescapable statutory mandate should foreclose assertion of that claim.
This defendant in any event will be required under the original pleadings to undertake defense of the issue of liability raised in the original malpractice action. Inclusion of the cause for wrongful death will not significantly expand the scope of proof or the relevant legal considerations on the issue of liability. The amendment will, of course, introduce new aspects on the issue of damages, but defendant does not suggest how the failure to bring this cause within two years after the decedent's death had prejudiced him in the assembly or introduction of evidence in support of his defense as to such additional elements of damage. There are not here considerations of judicial repose or foreclosure of stale claims so persuasive as to compel the recognition of a time-bar.
It is suggested in the dissent that a defendant may be prejudiced with respect to proof on the issue of causation of death. This particular defendant does not press this difficulty on us. As to the future, each defendant in a personal injury action will be alerted, after the announcement of today's decision, to the possibility, if the plaintiff dies, that the pending action may be enlarged to include the wrongful...
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