Martinez v. New York City Health & Hosp. Corp.

• Decision Date: 01 February 1988
• Citation: 524 N.Y.S.2d 246,137 A.D.2d 503
• Parties: Ana MARTINEZ, etc., Appellant, v. The NEW YORK CITY HEALTH & HOSPITAL CORPORATION, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 246

524 N.Y.S.2d 246

137 A.D.2d 503

Ana MARTINEZ, etc., Appellant, v. The NEW YORK CITY HEALTH & HOSPITAL CORPORATION, Respondent et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Feb. 1, 1988.

Blume, Easton & Clark, Levittown (Alan W. Clark, of counsel), for appellant.

Peter L. Zimroth, Corp. Counsel, New York City (Bower & Gardner of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated February 18, 1987, which granted the motion of the defendant New York City Health and Hospitals Corporation to dismiss the complaint insofar as it is asserted against it, as timed barred.

ORDERED that the order is affirmed, with costs.

The plaintiff's infant decedent died on August 1, 1981. The plaintiff was appointed as the infant decedent's personal representative on May 14, 1982. Thereafter, on December 23, 1982, the plaintiff commenced the instant action seeking recovery, inter alia, for wrongful death. The New York City Health and Hospitals Corporation Act (see, McKinney's Uncons.Laws of N.Y. § 7401) requires that an action against the New York City Health and Hospitals Corporation (hereinafter NYCHHC) for the death of a plaintiff's decedent be commenced within one year and 90 days after the cause of action "shall have accrued". The accrual date and, therefore, the time for commencement of the action is measured from the date of death of the plaintiff's decedent ( see, Brennan v. City of New York, 59 N.Y.2d 791, 464 N.Y.S.2d 731, 451 N.E.2d 478; D'Andrea v. Long Is. R.R. Co., 117 A.D.2d 10, 501 N.Y.S.2d 891, affd. 70 N.Y.2d 683, 518 N.Y.S.2d 964, 512 N.E.2d 547; Brann v. City of New York, 100 A.D.2d 504, 472 N.Y.S.2d 708). At bar, it is undisputed that the plaintiff failed to commence her action within one year and 90 days of her decedent's death. The plaintiff argues that the date of her appointment as administratrix should be deemed to be the accrual date from which the limitations period commences to run. While acknowledging that Brennan v. City of New York (supra) and its progeny hold to the contrary, the plaintiff urges this court to hold Brennan inapplicable to the instant action as it was commenced prior to the date of the Brennan determination. We find this argument unpersuasive. Review of the facts in ...