Myers v. City of Plattsburgh

• Decision Date: 09 May 1961
• Citation: Myers v. City of Plattsburgh, 214 N.Y.S.2d 773, 13 A.D.2d 866 (N.Y. App. Div. 1961)
• Parties: Jeanett Mae MYERS, as Administratrix of the Estate of George Richard Myers, Deceased, Appellant, v. CITY OF PLATTSBURGH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 773

214 N.Y.S.2d 773

13 A.D.2d 866

Jeanett Mae MYERS, as Administratrix of the Estate of George Richard Myers, Deceased, Appellant, v. CITY OF PLATTSBURGH et al., Respondents.

Supreme Court, Appellate Division, Third Department.

May 9, 1961.

Robinson & Holcombe, Plattsburgh, for appellant (Thomas A. Robinson, Plattsburgh, of counsel).

Allen M. Light, Plattsburgh, for respondents.

Before BERGAN, P. J., and COON, GIBSON, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court entered in Clinton County, which, upon motion, dismissed the complaint on the ground that the statute of limitations is a bar to the action, which was brought to recover damages for negligence occurring during the period November 15, 1938 to August 31, 1940, whereby plaintiff's estate contracted histoplasmosis through exposure to large amounts of pigeon excretion present in a structure in which he worked, the disease causing pain and suffering in his lifetime and his death on August 18, 1956.

Inasmuch as plaintiff, in his lifetime, failed to commence an action to recover damages for his personal injury resulting from negligence, within three years after his cause of action accrued (Civil Practice Act, § 49, subd. 6), the causes of action sought to be prosecuted by his administratrix are barred, since a cause of action for personal injuries, once foreclosed by the statute, is not, upon death, revived in favor of the estate and the cause of action for wrongful death given by section 130 of the Decedent Estate Law is barred if the personal injury cause of action was...