Melendez v. Manhattan and Bronx Surface Transit Operating Authority

• Decision Date: 14 June 1988
• Citation: 137 A.D.2d 390,529 N.Y.S.2d 95
• Parties: Lydia MELENDEZ, individually and as Administratrix of the Estate of Ramon-Ortiz Melendez, Plaintiff-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and New York City Transit Authority, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 95

529 N.Y.S.2d 95

137 A.D.2d 390

Lydia MELENDEZ, individually and as Administratrix of the Estate of Ramon-Ortiz Melendez, Plaintiff-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and New York City Transit Authority, Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

June 14, 1988.

Thomas F. Waldorf, of counsel (Thomas F. Waldorf, P.C., Kew Gardens, and Talisman & Rudin, Mineola, attorneys), for plaintiff-appellant.

Steve S. Efron, New York City, of counsel (Albert C. Cosenza, Brooklyn attorney), for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, CARRO, ROSENBERGER and SMITH, JJ.

KUPFERMAN, Justice Presiding.

At approximately 5:00 P.M. on April 6, 1982, as he was crossing the intersection of East 167th Street and Grant Avenue in the Bronx, plaintiff's decedent was struck and gravely injured by a bus owned by defendant New York City Transit Authority (T.A.) and operated by its subsidiary corporation, defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). He died of his injuries that same day. A timely notice of claim was served upon defendants on June 1, 1982 pursuant to General Municipal Law § 50-i. However, this wrongful death action was not commenced until April 2, 1984.

In their verified answer, defendants erroneously admitted that this action was commenced within one year and ninety days of its accrual. Thereafter, defendants sought leave to amend their answer to include the affirmative defense of Statute of Limitations, which motion was granted by the order appealed from.

Public Authorities Law § 1212(2) requires that an action "founded on tort" shall not be commenced against defendant authorities more than one year and ninety days "after the happening of the event upon which the claim is based".

At one time, there was no uniform time limit within which to commence an action against a municipality. In 1959, however, General Municipal Law § 50-i was enacted (L.1959, ch. 788, § 1), which, like Public Authorities Law § 1212, required that any action for personal injury or property damage sustained by reason of the negligence or wrongful act of a municipality had to be commenced within one year and ninety days after the happening of the event.

In Collins v. City of New York, 55 N.Y.2d 646, 446 N.Y.S.2d 258, 430 N.E.2d 1311, where a wrongful death action against a municipality was commenced within two years of, but more than one year and ninety days after, the decedent's death, the Court of Appeals held that the term "personal injury" does not include within its scope actions for wrongful death and that plaintiff's claim against the defendant city was governed by the two-year period of limitations for wrongful death actions found in EPTL 5-4.1. In so ruling, the court further noted that General Municipal Law § 50-i had recently been amended (L.1981, ch. 738, § 2, eff Sept. 1, 1981) to provide specifically for the inclusion of a two-year limitati period for wrongful death actions against municipalities. (55 N.Y.2d, supra, at 648)

Unlike General Municipal Law § 50-i, however, Public Authorities Law § 1212 was never similarly amended. In D'Andrea v. Long Is. R.R. Co., 117 A.D.2d 10, 501 N.Y.S.2d 891, a wrongful death action commenced less than two years but more than one year after plaintiff's decedent was struck and killed by an LIRR train, Justice Lawrence J. Bracken, writing for a unanimous Second Department, concluded that, for purposes of Public Authorities Law § 1276(2), which requires that an action against the Metropolitan Transportation Authority or its subsidiaries "founded on tort" shall not be commenced more than one year after the cause of action therefor shall have accrued, such an action accrues upon the death of the decedent.

In so ruling, the court noted that it is now settled that the one-year Statute of Limitations contained in Public Authorities Law § 1276(2), and not the two-year limitation period prescribed by EPTL 5-4.1 applies in a wrongful death action against the MTA or its subsidiary (117 A.D.2d, supra, at 13, 501 N.Y.S.2d 891, citing Andersen v. Long Is. R.R., 88 A.D.2d 328, 453 N.Y.S.2d 203, affd. 59 N.Y.2d 657, 463 N.Y.S.2d 407, 450 N.E.2d 213). Any doubt which may have existed that Andersen was distinguishable because the...