Fordham-Coleman v. Natl. Fuel Gas Distrib. Corp.

• Decision Date: 20 April 2007
• Docket Number: CA 06-03251.
• Parties: DONNA FORDHAM-COLEMAN, as Administratrix of the Estate of VELMA ARLENE FORDHAM, Deceased, Appellant-Respondent, v. NATIONAL FUEL GAS DISTRIBUTION CORPORATION, Respondent-Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 106

834 N.Y.S.2d 422

2007 NY Slip Op 03368

DONNA FORDHAM-COLEMAN, as Administratrix of the Estate of VELMA ARLENE FORDHAM, Deceased, Appellant-Respondent, v. NATIONAL FUEL GAS DISTRIBUTION CORPORATION, Respondent-Appellant, et al., Defendant.

CA 06-03251.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 20, 2007.

John Feroleto, Attorneys at Law, Buffalo (John P. Feroleto of counsel), for appellant-respondent.

Phillips Lytle LLP, Buffalo (Kevin J. English of counsel), for respondent-appellant.

OPINION OF THE COURT

GREEN, J.

On February 19, 2001, the body of 58-year-old Velma Arlene Fordham (decedent) was discovered in her unheated residence at 227 Burgard Place in the City of Buffalo. The Chief Medical Examiner for Erie County subsequently determined that the cause of death was hypothermia. Plaintiff, decedent's daughter, commenced this action as administratrix of decedent's estate, seeking, inter alia, damages for decedent's wrongful death and conscious pain and suffering. Plaintiff alleges that decedent's death was caused by the failure of defendant National Fuel Gas Distribution Corporation (National Fuel) to provide gas service to decedent, leaving her without a source of heat for her residence.

In November 2000 decedent made arrangements to move to 227 Burgard Place. On November 16th she telephoned National Fuel to transfer service from her former residence to her new residence. She requested that service at her former residence be turned off on November 20th and that service be transferred to her new residence the following day. As a result of decedent's telephone call, National Fuel generated a work order. On November 21st, the day on which decedent's gas service was scheduled to be transferred to 227 Burgard Place, a major lake effect snowstorm struck Buffalo, and National Fuel was unable to complete the transfer. On November 22nd decedent notified National Fuel by telephone that she did not have transportation to 227 Burgard Place but that her landlord would be available to provide access to her new residence. The landlord also telephoned National Fuel that day and provided the same information, along with his telephone number. National Fuel neither appeared at 227 Burgard Place nor telephoned the landlord that day.

A week later, on November 29th, decedent remained without gas service at her new residence. She went to National Fuel's consumer assistance center that day and spoke to a consumer business representative (CBR). The CBR mistakenly treated decedent as a new customer, and a new work order was generated by National Fuel. The CBR advised decedent that her application for service would be denied based upon an unsatisfied judgment from 1997. The CBR also provided decedent with a written "Notice of Residential Service Denial" (Notice of Denial), which he signed using a "pen name." Although the Notice of Denial contains the initials of the CBR's supervisor on a line provided for the supervisor's signature, the supervisor never saw the document, and his initials were placed there by the CBR. According to both the CBR and a senior manager of the consumer business division, it was standard practice at National Fuel for a CBR to sign the supervisor's initials on a Notice of Denial.

After decedent spoke to the CBR on November 29th, she went from National Fuel's consumer assistance center to the Home Energy Assistance Program (HEAP) office at the Erie County Department of Social Services (DSS). At that time, decedent had no source of income. Decedent received a combined basic and emergency HEAP payment and returned to National Fuel's consumer assistance center, again seeking service for 227 Burgard Place. The same CBR advised decedent that National Fuel would not provide her with service because the amount of the unsatisfied 1997 judgment exceeded the HEAP payment.

No further action was taken by National Fuel with respect to decedent's repeated requests for service until December 13th, when a third work order was generated to ascertain the status of the original work order. On that date the second work order, which had been generated as the result of decedent's application at the consumer assistance center, was cancelled. In response to the third work order, a National Fuel serviceperson went to 227 Burgard Place on December 14th. When he arrived there, however, he discovered that there was no gas meter for decedent's residence, and he therefore was unable to activate service. On December 20th, National Fuel sent a letter to decedent at 227 Burgard Place, directing her to schedule an appointment to activate her gas service.

It is not clear on the record before us where decedent was residing following her first request for gas service at her new residence in mid-November 2000, although it appears that she stayed with friends during portions of the three ensuing months. The landlord at 227 Burgard Place did not see decedent during that three-month period. He knocked on decedent's door at least once and up to three times a week, but there was never an answer. Although decedent had moved boxes containing her belongings to 227 Burgard Place, the landlord noticed that she had not unpacked the boxes as of the first week of February 2001. The landlord did not enter the residence again until February 19, 2001, at which time he discovered decedent's body on the floor. Gas service had never been activated at 227 Burgard Place, and the residence was unheated. The Chief Medical Examiner examined the body at the scene and subsequently performed an autopsy and completed the death certificate. The death certificate indicates that the date of death is "02/19/2001" and that the cause of death is hypothermia.

Plaintiff commenced this action on February 18, 2003. In the first two causes of action, plaintiff alleges that National Fuel was negligent and she seeks compensatory damages for decedent's wrongful death and conscious pain and suffering. In the third cause of action, plaintiff seeks an award of punitive damages based, inter alia, upon National Fuel's reckless disregard of decedent's health and safety. Inasmuch as a separate cause of action for punitive damages does not lie (see Smith v County of Erie, 295 AD2d 1010, 1011 [2002]; Staudacher v City of Buffalo, 155 AD2d 956 [1989]), we shall hereafter refer to the third cause of action as a claim for punitive damages.

National Fuel moved for summary judgment dismissing the complaint against it, and Supreme Court granted those parts of the motion with respect to the first cause of action, for wrongful death, and the claim for punitive damages. In addition, the court sua sponte directed that its "decision and the moving papers upon which it is based are filed under seal until a determination can be made as to which of them are under an earlier continuing seal and/or protective order of the [c]ourt." For the reasons that follow, we conclude that the order should be modified by denying the motion in its entirety and reinstating the first cause of action and the claim for punitive damages against National Fuel, and by vacating the sealing directive.

Wrongful Death

National Fuel sought summary judgment dismissing the wrongful death cause of action as time-barred. A wrongful death cause of "action must be commenced within two years after the decedent's death" (EPTL 5-4.1 [1]; see Burwell v Yonkers Gen. Hosp., 6 AD3d 478, 480 [2004]; Cole v Tat-Sum Lee, 309 AD2d 1165, 1167 [2003]), and National Fuel failed to meet its burden of establishing as a matter of law that the limitations period had run (see Brush v Olivo, 81 AD2d 852, 853 [1981]). Plaintiff commenced this action on February 18, 2003, less than two years after the date of death set forth in the death certificate. "A certified copy of the record of a ... death ... shall be prima facie evidence in all courts and places of the facts therein stated" (Public Health Law § 4103 [3]). Here, the death certificate unequivocally and unqualifiedly lists the date of death as "02/19/2001." There is no indication that the notation "Found" above the time listed as the time of death refers to the date of death.

We agree with National Fuel that the prima facie evidence of the date of death supplied by the death certificate may be overcome with evidence demonstrating that the death occurred on a different date (see generally Matter of Whitaker, 120 Misc 2d 1021, 1022-1023 [1983]). In this case, however, the evidence apart from the death certificate merely raises a triable issue of fact with respect to the date of death. National Fuel's expert concluded, based upon his review of the Medical Examiner's records, data concerning the temperatures in February 2001 and evidence that decedent was last seen alive in January 2001, that the death of decedent occurred two to three weeks prior to the discovery of her body on February 19, 2001. The Chief Medical Examiner, however, repeatedly testified during his deposition that he could not determine an approximate date of death. He further testified that decedent was dead "[l]ong enough for her to start to undergo decompositional changes," but "[i]t's extremely, extremely, extremely varied and no one can say; absolutely no one can say" how long it would take for the decompositional changes he observed in decedent to occur. Thus, the testimony of the Chief Medical Examiner undercuts both the credibility of National Fuel's expert and the substance of his opinion with respect to the date of death. In light of the conflicting evidence, the issue of the date of decedent's death is properly resolved by the trier of fact. We therefore conclude that the wrongful death cause of action should be reinstated.

Conscious Pain and Suffering

National Fuel sought summary judgment dismissing the conscious pain and suffering cause of action on the ground that its actions were not a proximate cause of decedent's alleged injuries and death but,...