DeFilippis v. State
| Decision Date | 29 January 1990 |
| Citation | 550 N.Y.S.2d 728,157 A.D.2d 826 |
| Parties | , 159 A.D.2d 604 Libiro DeFILIPPIS, etc., Appellant, v. The STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Edwin N. Weidman, New York City (Howard Eison, on the brief), for appellant.
Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Vernon Stuart, of counsel), for respondent.
Before THOMPSON, J.P., and BROWN, EIBER and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for leave to file a late claim to recover damages for conscious pain and suffering, the claimant appeals from an order and judgment (one paper) of the Court of Claims (Rossetti, J.), entered January 20, 1989, which denied the application, and denied him the alternative relief requested of a declaration that a notice of intention previously filed was timely with respect to his cause of action to recover damages for conscious pain and suffering.
ORDERED that the order and judgment is modified, as a matter of discretion, by deleting the provision thereof which denied that branch of the application which was for leave to file a late claim pursuant to Court of Claims Act § 10(6), and substituting therefor a provision granting that branch of the motion; as so modified, the order and judgment is affirmed, without costs or disbursements.
On December 4, 1987, Sonia DeFilippis was operating her car eastbound on the Southern State Parkway, when a car owned by Michael Alexopoulos and driven by Vasiliki Alexopoulos crossed the median and collided with her car. As a result of injuries she sustained, Sonia DeFilippis died four hours later.
In the beginning of January 1988, the claimant Libiro DeFilippis filed a probate petition with the Surrogate's Court seeking, inter alia, letters testamentary. On March 11, 1988, 98 days after the cause of action to recover damages for pain and suffering accrued, the court issued letters testamentary to Libiro DeFilippis, who served a notice of intention to file a claim to recover damages for wrongful death. Receipt of the notice was acknowledged by the Court of Claims on April 4, 1988, and by the State of New York on April 5, 1988.
On or about August 29, 1988, the claimant brought the instant application for leave to file a late claim to recover damages for conscious pain and suffering (see, Court of Claims Act § 10[3], [6], and, in the alternative, sought a declaration that the notice of intention to file a claim already filed was timely as to a cause of action to recover damages for conscious pain and suffering based upon the applicability of the tolling provision found within CPLR 210(a). The motion was denied in its entirety.
The claimant failed to interpose a written notice of intention to file a claim based upon the decedent's conscious pain and suffering within the 90-day time limitation provided in Court of Claims Act § 10(3). For that reason the Court of Claims properly refused to declare that the notice which was filed was timely as to the cause of action to recover damages for conscious pain and suffering. The 90-day notice requirement is a jurisdictional prerequisite which must be strictly applied (see, Greenspan Bros. v. State of New York, 122 A.D.2d 249, 505 N.Y.S.2d 173; Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 97, 475 N.Y.S.2d 854; Byrne v. State of New York, 104 A.D.2d 782, 784, 480 N.Y.S.2d 225; Perry v. State of New York, 64 A.D.2d 799, 800, 408 N.Y.S.2d 154).
The Legislature was cognizant that a wrongful death action could only be instituted by a properly appointed legal representative, and it therefore extended the period for filing a claim or a written notice of intention to file a claim to 90 days following the appointment of an executor or administrator (Matter of Johnson v. State of New York, 49 A.D.2d 136, 138-139, 373 N.Y.S.2d 671). However, with respect to claims based upon the conscious pain and suffering of the decedent, notice may be given by any interested person (cf., Johnson v. State, supra; see also, Antoine v. State of New York, 103 Misc.2d 664, 668-669, 426 N.Y.S.2d 917). While tolls and extensions pursuant to the CPLR extend the time to apply for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5) (see, Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 263, 434 N.Y.S.2d 138, 414 N.E.2d 639), those tolls and extensions have no applicability to the statutory period for service or filing of a timely...
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