Santaniello v. De Francisco

• Decision Date: 04 June 1973
• 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 589

344 N.Y.S.2d 589

74 Misc.2d 229

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.

June 4, 1973.

Fontanelli & Fontanelli, New York City, for plaintiff, Morris Rosenzweig, New York City, of counsel.

George M. Onken, Jamaica, for defendants and movants Metropolitan Transportation Authority and another.

DeSantis, McGarry & Hargous, Garden City, for defendants, DeFrancisco and another.

BERTRAM HARNETT, Justice.

By memorandum decision dated March 30, 1973, this Court granted defendants' motion for summary judgment on the grounds that the action was not commenced within the two year statute of limitations period applicable to wrongful death claims. See, Santaniello v. De Francisco, 73 Misc.2d 934, 342 N.Y.S.2d 916. Now, plaintiff moves to reargue that motion, contending that (1) the Court could not dismiss the action in reliance on a statute of limitations not formally pleaded by defendants; and (2) the two year period was extended by statute beyond the time when the action was commenced.

Since neither of these contentions was previously raised, and both bear materially on the ultimate disposition of the pleaded defense, the Court will grant reargument in order to provide a total resolution of the matter.

The sequence of events here reveals three critical occurrences. First, according to the pleadings, Theresa Santaniello was killed at a Long Island Railroad (LIRR) crossing on March 29, 1970. Second, her father, Joseph Santaniello, served a notice of claim on the LIRR and its parent organization, the Metropolitan Transportation Authority (MTA) on May 29, 1970 and June 26, 1970, respectively. Finally, this action for wrongful death was commenced on May 16 and May 17, 1972 against the MTA and LIRR, in that order.

The computation of limitation periods in cases brought against public authorities invariably entails the intermeshing of procedural preconditions imposed upon the timetable of litigation events by the General Municipal Law, Public Authorities Law and the applicable statute of limitations. It is undisputed that in wrongful death cases generally, the action must be commenced 'within two years after the decedent's death'. Estates, Powers and Trusts Law § 5--4.1. But, that period is subject to enlargement by virtue of CPLR 204(a) which provides:

'Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced'.

Statutory prohibitions against action commencement fall into two broad categories in litigation against public authorities.

The first of these is where a statute specifically bars commencement of an action for a stated period of time. In such cases, a mandatory waiting period is prescribed over which plaintiff has no control. Typical of these are the various waiting periods prescribed for bringing personal injury actions after notice of the claim is given. The statute of limitations is then extended by the period of statutory prohibition. Thus, where 30 days must pass after service of the notice of claim before the action is commenced, the statute of limitations is broadened by a like 30 days. Brehm v. Mayor, Aldermen and Commonalty of the City of New York, 104 N.Y. 186, 10 N.E. 158; Wakefield v. Board of Education, 192 Misc. 639, 79 N.Y.S.2d 420, modified on other grounds, 274 App.Div. 884, 84 N.Y.S.2d 700, affd. 299 N.Y. 664, 87 N.E.2d 58; Amex Asphalt Corp. v. City of New York, 263 App.Div. 968, 33 N.Y.S.2d 182, affd. 288 N.Y. 721, 43 N.E.2d 97. Where the statutory delay period is three months, the limitation period is also extended a like term. Mulligan v. County of Westchester 272 App.Div. 929, 71 N.Y.S.2d 153; Sullivan v. City of Watervliet, 285 App.Div. 179, 136 N.Y.S.2d 411.

Public Authorities Law § 1276(1), one of the mandatory delay periods, provides:

'As a condition to the consent of the state to such suits against the authority, in every action against the authority . . . for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which the action is founded were presented to a member of the authority . . . and that the authority has neglected or refused to make an adjustment or payment thereof'.

This 30 day waiting period is established to allow the public authority some opportunity to investigate the incident and settle it informally before being confronted with a judicial proceeding. When read with CPLR 204(a), it brings about a two year and 30 day statute of limitations in wrongful death claims against public authorities. Two years and 30 days after the decedent's death on March 29, 1970 would be April 28, 1972. Yet, the action was commenced against both public authorities in May 1972, and is therefore time-barred in this respect.

The second type of recognized 'statutory prohibition' is plaintiff's remaining hope for extending the limitation period further. It is found where a 'precondition' or procedure, usually requiring some undefined time for compliance, is imposed upon the suing party before any litigation may be started. Here, there is no stated period of prelitigation limbo. Its duration is unspecified. But, its essential quality is that the mandated procedure entail participation or certification by an entity other than the plaintiff alone. It may not be solely dependent upon the suing party's unilateral action. Accordingly, where a court order is required in order to bring suit against a public body, CPLR 204(a) has been held to extend the applicable limitation period by the period of time actually required to obtain such leave. Creswell v. Doe, 22 A.D.2d 942, 255 N.Y.S.2d 946 (leave of court required in order to sue MVAIC under Insurance Law § 618(a), thereby stalling statute of limitations). And, there is split authority on whether a statutory provision allowing a municipality to demand an examination of the injured party within 90 days of service of the notice of claim, creates a 90 day limitation extension. Compare, Greco v. Board of Education, 25 A.D.2d 432, 267 N.Y.S.2d 185; De Jose v. Town of Hempstead, 25 Misc.2d 780, 208 N.Y.S.2d 6; Israel v. City of New York, 28 Misc.2d 418, 214 N.Y.S.2d 161, with Franklin Soc. Fed. Savings and Loan Assn. v. City of New York, 66 Misc.2d 675, 322 N.Y.S.2d 186; Kratz v. Dussault, 33 A.D.2d 826, 305 N.Y.S.2d 734.

General Municipal Law § 50--e specifically made applicable to public authorities under Public Authorities Law § 1276(2), requires that a notice of claim be served on public authorities within ninety days of the claimed accident, and be so served before the action is commenced. But, while this act is a precondition to bringing suit, it is one solely within plaintiff's control, requiring action by no outside body. See, Weinstein-Korn-Miller, New York Civil Practice, 204.03, vol. 1, p. 2--113. It simply entails completing a notice of claim form with the statutory requisites and serving the appropriate officials. Whether it is done in one day or 90 days is up to the plaintiff. There is direct authority bearing on this issue. The Court of Appeals in Barchet v. New York City Transit Auth., 20 N.Y.2d 1, 6, 281 N.Y.S.2d 289, 292, 228 N.E.2d 361, 363, unanimously held that the statutory limitation period was extended by the time required to obtain a court order allowing late service of a claim notice. The Court specifically noted that the required leave of court rendered the claimant's right of action 'no longer solely within her control' and found it 'quite similar to that which requires the plaintiff to allege that 30 days have elapsed since the notice of claim was served'. The action was sustained as timely brought since the complaint was served within the limitation period so extended. However, the Court stated in Dicta that the initial 90 day period in which a notice of claim must be served does not fall within the provisions of CPLR 204(a):

'The statutory requirement for service of a notice of claim...