Gibbons v. City of Troy

• Decision Date: 02 December 1982
• Parties: Cheryl GIBBONS, as Administratrix of the Estate of Charles Gibbons et al., Deceased, Appellant, v. CITY OF TROY, New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 950

457 N.Y.S.2d 950

91 A.D.2d 707

Cheryl GIBBONS, as Administratrix of the Estate of Charles

Gibbons et al., Deceased, Appellant, v. CITY OF TROY, New York, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 2, 1982.

E. Stewart Jones, Troy (Robert M. Cohen and E. Stewart Jones, Jr., Troy, of counsel), for appellant.

Donald C. Bowes, Corp. Counsel, City of Troy, Troy (Donald J. Shanley, Troy, of counsel), for respondent City of Troy et al.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (Susanna L. Fisch, Albany, of counsel), for respondent Troy Housing Authority.

Before SWEENEY, J.P., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered February 16, 1982 in Rensselaer County, which granted defendants' motion to dismiss plaintiff's second and fourth causes of action and denied plaintiff's cross motion for permission to serve a late notice of claim.

Plaintiff's two infant children, ages five and seven years, died on February 17, 1980, as the result of a fire in her residence in the Margaret W. Phelan Apartments in Troy, New York. Limited letters of administration were granted to plaintiff on November 7, 1980, and between January 15 and January 16, 1981 plaintiff served on these defendants a notice of claim for wrongful death and conscious pain and suffering of her children. The summons with notice of the commencement of the action was served between April 15 and April 20, 1981. After service of the complaint, defendants moved to dismiss the second and fourth causes of action, which alleged conscious pain and suffering, for plaintiff's failure to file a notice of claim within 90 days of the occurrence. Plaintiff's opposing papers and cross motion for leave to file a late notice of claim were served in October, 1981, more than one year and 90 days after the occurrence.

Special Term, noting the distinction between the causes of action for conscious pain and suffering and wrongful death, granted defendants' motion and denied plaintiff's cross motion.

We agree with the determination of Special Term. The notice of claim, which was served within 90 days after the issuance of the letters of administration, but more than 90 days after the occurrence of the fire on February 17, 1980, is untimely in regard to the causes of action for conscious pain and suffering. Section 50-e (subd. 1, par. [a] ) of the General Municipal Law clearly requires the notice of claim in a tort action against a public corporation to "be served in accordance with the provisions of this section within ninety days after the claim arises." Unlike the causes of action for wrongful death, which measure the 90-day period from the appointment of an executor or administrat (Forero v. Town of Tuxedo, 51 A.D.2d 443, 382 N.Y.S.2d 328), ^* causes of action for conscious pain and suffering must be noticed within 90 days of the accident or occurrence (Joseph v. McVeigh, 285 App.Div. 386, 137 N.Y.S.2d 577, affd. 309 N.Y. 877, 131 N.E.2d 289).

Plaintiff's reasoning here tracks the rationale of Pierson v. City of New York, 83 A.D.2d 128, 443 N.Y.S.2d 657. However, that decision was reversed by the Court of Appeals (56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331), which interpreted section 50-e, as amended in 1976, to mean that a court is precluded from granting an application for an extension unless it is made within "one year and 90 days after the cause of action accrued, unless the statute has been tolled (General Municipal Law, § 50-i, subd. 1; Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 262-263, 434 N.Y.S.2d 138, 414 N.E.2d 639)" (id. at 954, 453 N.Y.S.2d 615, 439 N.E.2d 331). There are three reasons why we should not consider that the statute was tolled: (1...