Dawson v. Langner

• Decision Date: 29 January 1985
• Citation: 106 A.D.2d 152,484 N.Y.S.2d 743
• Parties: Janice DAWSON, as Administratrix of the Estate of Albert Dawson, Appellant, v. Cynthia A. LANGNER, Defendant, and Regional Transit Service and Apostle Zaharaides, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 743

484 N.Y.S.2d 743

106 A.D.2d 152

Janice DAWSON, as Administratrix of the Estate of Albert Dawson, Appellant, v. Cynthia A. LANGNER, Defendant and Regional Transit Service and Apostle Zaharaides, Respondents.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1985.

H. Paul Comisar, Rochester, for appellant; Nino J. Marini, Rochester, of counsel.

Hirsch & Burke, P.C., Rochester, for respondents; Paul F. Shanahan, Rochester, of counsel.

Before DOERR, J.P., and BOOMER, GREEN, O'DONNELL and SCHNEPP, JJ.

DOERR, Justice Presiding.

The question presented on this appeal is: when does a cause of action for wrongful death "accrue" for purposes of the Public Authorities Law?

Plaintiff's intestate was struck and killed by an automobile driven by defendant Cynthia Langner on August 17, 1982. The accident occurred while decedent was crossing a road to catch a bus owned by defendant Regional Transit Service (RTS) and driven by defendant Apostle Zaharaides, an employee of RTS. Plaintiff was appointed as administratrix of decedent's estate on December 22, 1983 and commenced the action in March 1984.

Defendants RTS and Zaharaides moved to dismiss the complaint as time barred for failure to commence the action within one year of the time the action accrued as required by section 1299-rr, subd. 2, of the Public Authorities Law. Special Term granted the motion and plaintiff appeals. We reverse.

The parties agree that the statute of limitations set forth in the Public Authorities Law applies to a wrongful death action (see Andersen v. Long Is. R.R., 88 A.D.2d 328, 340, 453 N.Y.S.2d 203, affd. 59 N.Y.2d 657, 463 N.Y.S.2d 407, 450 N.E.2d 213). The relevant statutory provision states: "action against the authority founded on tort shall not be commenced more than one year after the cause of action therefor shall have accrued" (Public Authorities Law, § 1299-rr ). The parties disagree, however, on when a cause of action for wrongful death "accrues".

Defendants rely on Andersen v. Long Is. R.R., supra, for the proposition that a wrongful death action "accrues" at the moment of death. The case did not so hold, however, since the issue of "accrual" was not specifically addressed in the opinion (see D'Andrea v. Long Is. R.R. Co., 122 Misc.2d 760, 471 N.Y.S.2d 790). For the same reason, and also because there is no indication that the claim was for wrongful death, we place no reliance on Penner v. National R.R. Passenger Corp., 98 A.D.2d 631, 469 N.Y.S.2d 385.

The cause of action for wrongful death was unknown to the common law and is purely a creation of statute (Crapo v. City of Syracuse, 183 N.Y. 395, 399, 76 N.E. 465). In New York, such actions are constitutionally guaranteed (N.Y. Const., art. I, § 16) and are provided for in section 5-4.1 of the Estates, Powers and Trusts Law. Significantly, a wrongful death action is brought not on behalf of the decedent's estate, but on behalf of the decedent's distributees, and the damages recoverable are not compensation for the injury sustained by the decedent, but for injuries suffered by the distributees as a result of the decedent's death (George v. Mount Sinai Hosp., 47 N.Y.2d 170, 176, 417 N.Y.S.2d 231, 390 N.E.2d 1156). Accordingly, the appointment of a qualified administrator is essential to the maintenance of the 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. Cent. Gen. Hosp., 51 N.Y.2d 242, 249, n. 2, 434 N.Y.S.2d 130, 414 N.E.2d 632).

Since the cause of action for wrongful death is not complete until the appointment of an administrator, it has long been the rule that the cause of action for wrongful death does not "accrue" until the appointment of the administrator (Crapo v. City of Syracuse, supra; Gibbons v. City of Troy, 91 A.D.2d 707, 457 N.Y.S.2d 950; Forero v. Town of Tuxedo, 51 A.D.2d 443, 445, 382 N.Y.S.2d 328; Erickson v. Town of Henderson, 30 A.D.2d 282, 284, 391 N.Y.S.2d 403; Matter of Sellars v. MVAIC, 20 A.D.2d 350, 353, 246 N.Y.S.2d 937; McDonough v. Cestare, 3 A.D.2d 201, 205, 159 N.Y.S.2d 616; see also, Matter of Johnson 88 A.D.2d 1, 3, 452 N.Y.S.2d 926).

The usual statute of limitations for a wrongful death action does not run from the accrual of the cause of action, but from the date of decedent's death (EPTL, § 5-4.1). Thus, "accrual" of the cause of action is generally irrelevant. Although the term "accrual" is regularly employed in statutory language (see e.g., CPLR 203 ), it is not defined. We have previously observed that "cause of action may be said to accrue when the plaintiff has a right to commence an action" (Erickson v. Town of Henderson, supra, p. 284, 391 N.Y.S.2d 403, quoting Christian v. Village of Herkimer, 5 A.D.2d 62, 64, 169 N.Y.S.2d 81, affd. 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122). It is well settled that there is no right to commence an action for wrongful death in the absence of a duly appointed administrator (see Carrick v. Cent. Gen. Hosp., supra, and Bernardez v. City of New York, 100 A.D.2d 798, 474 N.Y.S.2d 728 ). Since there is no right to commence the cause of action for wrongful death prior to appointment of an administrator, the action cannot be said to have accrued before then.

The Public Authorities Law provides that the statute of limitations therein begins to run when the cause of action accrues. There is no requirement, therefore, that the cause of action be...