Lee De'Leone v. City of New York

• Decision Date: 01 November 2007
• Docket Number: No. 8056/04,No. 1893.,1893.,8056/04
• Citation: 2007 NY Slip Op 8269,45 A.D.3d 254,845 N.Y.S.2d 241
• Parties: JOSEPH LEE DE'LEONE, an Infant, by His Legal Guardian and Adoptive Mother, DEBORAH ANGEL, et al., Respondents, v. CITY OF NEW YORK et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 254

845 N.Y.S.2d 241

2007 NY Slip Op 8269

JOSEPH LEE DE'LEONE, an Infant, by His Legal Guardian and Adoptive Mother, DEBORAH ANGEL, et al., Respondents, v. CITY OF NEW YORK et al., Appellants, et al., Defendant.

No. 1893.

No. 8056/04

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

Decided November 1, 2007.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 12, 2006, which, to the extent appealed from, granted the motion of the infant plaintiff to amend his notice of claim pursuant to General Municipal Law § 50-e (6) and to amend his complaint to allege a derivative claim on behalf of plaintiff Deborah Angel, unanimously modified, on the law, to the extent of striking from the amended complaint that part of Deborah Angel's derivative claim which seeks damages for loss of services, society and companionship of plaintiff Joseph Lee De'Leone, and otherwise affirmed, without costs.

Even though Deborah Angel adopted the infant plaintiff after the tort at issue occurred, the adoptive mother had standing to assert a derivative claim for future medical expenses incurred on the child's behalf. To deprive the adoptive mother of the ability to recover medical expenses would unreasonably interfere with her absolute duty to support her minor child (see Clough v Board of Educ. of Spencerport Cent. School Dist., 56 AD2d 233, 236 [1977]). Furthermore, to do so would contravene the public policy of encouraging people to adopt children facing difficult circumstances, such as the infant plaintiff, who was severely beaten while in foster care and sustained allegedly permanent injuries. Accordingly, with regard to future medical expenses, the concept that one may not "marry" a lawsuit should not be extended to include "adopting" a lawsuit. However, the adoptive mother should not be permitted to recover for loss of services, society and companionship of the child, just as a person may not recover for a spouse's loss of consortium where the spouse is injured prior to the marriage (see Briggs v Butterfield Mem. Hosp., 104 AD2d 626 [1984]).

The adoptive mother's medical expense claim against the City is not barred by the statute of limitations, as it did not accrue until she adopted the child, and it was commenced within one year and 90 days of that date (see Clough v Board of Educ., 56 AD2d at 237). Even if the claim accrued at the time of the injury to the child, it is still not time-barred because the...