Santaniello v. De Francisco

• Decision Date: 30 March 1973
• Citation: 342 N.Y.S.2d 916,73 Misc.2d 934
• Parties: Joseph SANTANIELLO, as Administrator of the goods, chattels and credits of Theresa Santaniello, Deceased, Plaintiff, v. William DE FRANCISCO et al., Defendants.
• Court: New York Supreme Court

Page 916

342 N.Y.S.2d 916

73 Misc.2d 934

Joseph SANTANIELLO, as Administrator of the goods, chattels and credits of Theresa Santaniello, Deceased, Plaintiff, v. William DE FRANCISCO et al., Defendants.

Supreme Court, Special Term, Nassau County, Part I.

March 30, 1973.

Fontanelli & Fontanelli, New York City, for plaintiff.

DeSantis, McGarry & Hargous, Garden City, for defendants William De Francisco and Susanna De Francisco.

George M. Onken, Jamaica, for defendants Metropolitan Transp. Authority and the Long Island Railroad Co.

BERTRAM HARNETT, Justice.

On March 29, 1970, Theresa Santaniello, while an automobile passenger, was struck and killed by a Long Island Railroad train at a crossing in Massapequa, New York. Within 90 days, her father Joseph served, without rejection, a notice of claim on the Long Island Railroad Company (LIRR) and the Metropolitan Transit Authority. On May 27, 1971, Mr. Santaniello was issued letters of administration for his daughter's estate.

This wrongful death action was commenced January 15, 1972 by service of the summons and complaint only against the automobile owner and operator. The Railroad and Authority were inadvertently not joined. With apparent consent of the original defendants but without Court order, plaintiff served a second summons and complaint upon the Railroad and Authority in mid-May 1972, naming them and claiming their negligence caused the train crossing accident. The MTA and LIRR answered, denying the allegations and asserting, in part, that the claim was time barred by a one year statute of limitations.

Mr. Santaniello seeks now, by a multi-pronged motion, to correct pleading deficiencies by securing a court order (1) authorizing, Nunc pro tunc, the issuance of their second summons and complaint, (2) permitting amendment of that complaint to include statements as to notice of claim service, inadvertently omitted, and (3) striking the affirmative limitation defense. LIRR and MTA cross move for summary judgment on the basis of that same defense.

Defendants do not oppose the first two prongs of plaintiff's motion. There being no prejudice indicated to any party by the lack of formal motion prior to the service of process upon the additional parties, permission is granted to add defendants MTA and LIRR as of May 15, 1972. CPLR 1003, 2001; Davis v. Hauk & Schmidt, Inc., 232 App.Div. 556, 250 N.Y.S. 537; Hochschartner v. Schneider, 22 A.D.2d 867, 254 N.Y.S.2d 427. Similarly, there being no opposition to plaintiff's motion to amend the pleadings, as proposed, with the pertinent and undisputed allegations as to notice of claim service and failure to satisfy claim required by Public Authority Law § 1276, that formal deficiency may now be corrected in the amended pleadings. CPLR 3025(b).

However, such leave in both instances is of little avail unless the plaintiff brings himself within the applicable statute of limitation period. CPLR 203(e); Patrician Plastic Corp. v. Bernadel Realty Corp., 30 A.D.2d 574, 291 N.Y.S.2d 601; Cf. Palmer v. New York City Transit Auth., 37 A.D.2d 766, 324 N.Y.S.2d 550.

There are two applicable limitation statutes, one under the Public Authorities Law, the other under the Estates, Powers and Trusts Law, and the plaintiff must comply with both. While he meets the former, he fails on the latter.

The LIRR and MTA first rely upon Public Authorities Law § 1276(2) which provides:

'An action against the authority (or its subsidiary corporation PAL § 1276(6)) founded on tort shall not be commenced more than one year after the cause of action thereafter shall have accrued . . .'. (parenthetical added).

In general, a wrongful death action may be brought only by the legally appointed representative of the deceased, and, as such, it does not 'accrue' for purposes of action commencement, until such a representative is appointed. Crapo v. City of Syracuse, 183 N.Y. 395 76 N.E. 465; McDonough v. Cestare, 3 A.D.2d 201, 159 N.Y.S.2d 616, appeal denied, 3 A.D.2d 861, 163 N.Y.S.2d 376.

In Winbush v. City of Mount Vernon, 306 N.Y. 327, 118 N.E.2d 459, where the deceased person's next of kin served a notice of claim on, and later a wrongful death action was commenced within a year after official designation of the estate administrator, the Court of Appeals found that the notice was valid, albeit served before that appointment, and that, 'the time for suing began to run from the appointment of the administratrix only'. The very same rationale applies here. Mr. Santaniello served both MTA and LIRR before the expiration of one year after his appointment. He is not time barred by Public Authorities Law §...