D'Andrea v. Long Island R. Co.

• Decision Date: 05 May 1986
• Citation: 501 N.Y.S.2d 891,117 A.D.2d 10
• Parties: Susan D'ANDREA, etc., Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 891

501 N.Y.S.2d 891

117 A.D.2d 10

Susan D'ANDREA, etc., Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, et al., Appellants.

Supreme Court, Appellate Division Second Department.

May 5, 1986.

Thomas M. Taranto, Jamaica (Linda A. Mule and Franklin W. Kronenberg, of counsel), for appellants.

Ralph Berley, Bethpage, for respondent.

Before LAZER, J.P., and BRACKEN, BROWN and LAWRENCE, JJ.

BRACKEN, Justice.

On this appeal, we again venture into the morass which is comprised of the several statutory provisions limiting the time in which a wrongful death action may be commenced. Specifically, we must determine whether an action against the Metropolitan Transportation Authority (hereinafter MTA), a public authority, and its subsidiary corporation, the Long Island Rail Road (hereinafter LIRR), was timely commenced within one year after the cause of action "accrued" pursuant to Public Authorities Law § 1276(2). We hold that it was not, and, therefore, reverse the order appealed from and grant the defendants' motion to dismiss the action as time barred.

The plaintiff's decedent was struck and killed by an LIRR train on August 7, 1981. The plaintiff was appointed adminstratrix of the decedent's estate on April 26, 1983, more than 20 months after the date of death. Notices of claim were served upon the LIRR on May 18, 1983, and upon its parent authority, the MTA, on May 24, 1983. An action to recover damages for wrongful death was thereafter commenced by service of a summons and complaint upon the LIRR on August 4, 1983, and upon the MTA on August 5, 1983. The defendants moved to dismiss upon the ground that the action was time barred under the provisions of the Public Authorities Law § 1276(2). By order dated January 17, 1984, Special Term, 122 Misc.2d 760, 471 N.Y.S.2d 790, (Luciano, J.) denied the motion (see, D'Andrea v. Long Is. R.R. Co., 122 Misc.2d 760, 471 N.Y.S.2d 790), and the defendants have appealed.

Our analysis begins with the recognition that a cause of action to recover damages for wrongful death was unknown at common law and exists, in this State, solely by reason of statute (EPTL 5-4.1, et seq.; see, e.g., Liff v. Schildkrout, 49 N.Y.2d 622, 631-632, 427 N.Y.S.2d 746, 404 N.E.2d 1288; George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 176, 417 N.Y.S.2d 231, 390 N.E.2d 1156; Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 610, 612, 407 N.Y.S.2d 458, 378 N.E.2d 1027; Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 38, 211 N.Y.S.2d 133, 172 N.E.2d 526; Crapo v. City of Syracuse, 183 N.Y. 395, 399, 76 N.E. 465). ¹ The statute, being in derogation of common law, is to be strictly construed (Young v. Robertshaw Controls Co. Uni-Line Div., 104 A.D.2d 84, 88, 481 N.Y.S.2d 891, appeal dismissed 64 N.Y.2d 885, lv. granted 110 A.D.2d 920, 489 N.Y.S.2d 1016, appeal withdrawn 66 N.Y.2d 613). The principal statutory provision, EPTL 5-4.1 reads, in pertinent part, as follows:

"The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent's death".

For purposes of discussing the issues presented on this appeal, it must be noted that the foregoing statute contains two significant elements. First, it requires that the action be brought by a duly appointed personal representative, who is defined as a person who has received letters to administer the estate of the decedent (EPTL 1-2.13). Thus, "the existence of a qualified administrator is essential to the maintenance of the [wrongful death] action and * * * the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration" (Carrick v. Central Gen. Hosp., 51 N.Y.2d 242 249, n. 2, 434 N.Y.S.2d 130, 414 N.E.2d 632). Second, the statute prescribes a two-year period of limitation for commencement of a wrongful death action, which period runs from the date of the decedent's death, and not from the date of appointment of the personal representative (Bonilla v. Abbott, 113 A.D.2d 861, 493 N.Y.S.2d 592).

The task of determining the timeliness of a wrongful death action is complicated where, as in this case, the defendant is the MTA, a public authority, and the LIRR, its subsidiary corporation. Under such circumstances, we must also consider the provisions of Public Authorities Law § 1276(2) ², which provides:

"An action against the authority founded on tort shall not be commenced more than one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been served on the authority within the time limited by and in compliance with all the requirements of section fifty-e of the general municipal law."

It is now settled that the one-year Statute of Limitations contained in Public Authorities Law § 1276(2), and not the two-year limitation period prescribed by EPTL 5-4.1, applies in a wrongful death action against the MTA or its subsidiary (Andersen v. Long Is. R.R., 88 A.D.2d 328, 453 N.Y.S.2d 203, affd 59 N.Y.2d 657, 463 N.Y.S.2d 407, 450 N.E.2d 213). While EPTL 5-4.1 provides that the action must be commenced "within two years after the decedent's death", Public Authorities Law § 1276(2) requires that the action cannot be commenced more than one year after the cause of action "shall have accrued". The question for our consideration, which was not addressed or decided in Andersen, is at what time does a cause of action for wrongful death "accrue" for purposes of triggering the Statute of Limitations contained in section 1276?

In answering this question, we do not write upon a clean slate. Although the term "accrual" is not defined statutorily, courts have frequently been called upon to glean its meaning. In Barnes v. City of Brooklyn, 22 App.Div. 520, 48 N.Y.S. 36, a wrongful death action against a city, this court construed the former statute requiring filing of a notice of claim within six months after the cause of action accrued (L. 1886, ch. 572 § 1) to permit such filing within six months after the appointment of a personal representative. We stated:

"The alleged cause of action in question resulted from the death of the plaintiff's intestate. It did not occur during his life, and until letters of administration were granted to the plaintiff there was no person in existence capable of bringing an action for the alleged cause. While the right of action was given by the death of the plaintiff's intestate, for the alleged cause of the death, no cause of action could accrue to any party until the appointment of his personal representative. The creation of that relation, therefore, would reasonably seem to be essential to the accruing of a cause of action" (Barnes v. City of Brooklyn, supra, at p. 522, 48 N.Y.S. 36).

Thereafter, in Crapo v. City of Syracuse, 183 N.Y. 395, 76 N.E. 465, supra, the Court of Appeals, relying in part upon our decision in Barnes, held that, under the same statute, a cause of action to recover damages for wrongful death against a city did not accrue until the appointment of an administrator (Crapo v. City of Syracuse, supra, at pp. 387, 399-400, 76 N.E. 465). The court noted, however, that the action also had to be commenced within two years of the decedent's death as required by the general Statute of Limitations for wrongful death actions, thereby eliminating the danger of stale claims (former Code Civ Pro § 1902; Crapo v. City of Syracuse, supra, at p. 397, 76 N.E. 465).

Decisions subsequent to Crapo reflected a degree of uncertainty regarding the accrual date for wrongful death actions. For example, in McDonough v. Cestare, 3 A.D.2d 201, 205, 159 N.Y.S.2d 616, lv. denied 3 A.D.2d 861, 163 N.Y.S.2d 376, we reiterated, in dictum, that the "right to relief by action for wrongful death accrues on the appointment of an executor or administrator of the decedent's estate". In Santaniello v. De Francisco, 73 Misc.2d 934, 342 N.Y.S.2d 916, on rearg., 74 Misc.2d 229, 344 N.Y.S.2d 589, affd. 44 A.D.2d 831, 355 N.Y.S.2d 569, we affirmed, without opinion, an order of Special Term which dismissed as untimely a wrongful death action against the MTA and the LIRR. In that case, Special Term determined that although the action had been timely commenced within one year after the appointment of an administrator so as to satisfy the requirement of Public Authorities Law former § 1276 (which required commencement within one year after the cause of action "shall have accrued"), the action was untimely under EPTL 5-4.1, which requires that the action be commenced within two years after the decedent's death. However, subsequently, in Pepitone v. Smith, 54 A.D.2d 754, 387 N.Y.S.2d 706, we fixed the date of accrual for purposes of section 1276 to be the date on which the decedent died, and, in Penner v. National R.R. Passenger Corp., 98 A.D.2d 631, 469 N.Y.S.2d 385, the Appellate Division, First Department, held that the Statute of Limitations contained in section 1276 ran from "the occurrence of the alleged tort", although there is no indication in Penner that the cause of action was one to recover damages for wrongful death. In McDaniel v. Clarkstown Cent. School Dist. No. 1, 111 A.D.2d 151, 153, 488 N.Y.S.2d 783, on rearg. 110 A.D.2d 349, 494 N.Y.S.2d 885, we reaffirmed the general principle that a cause of action to recover damages for wrongful death accrues at the time of appointment of the administrator of the decedent's estate.

Recently, the Appellate Division, Fourth Department, held that, for purposes of Public Authorities Law § 1299-rr(2), a parallel provision governing actions against the Rochester-Genesee Regional Transportation Authority and its subsidiary...