Timmins v. Beth Israel Medical Center-Kings Highway Div.

• Decision Date: 05 August 1998
• Docket Number: CENTER--KINGS
• Citation: 177 Misc.2d 845,676 N.Y.S.2d 911
• Parties: , 1998 N.Y. Slip Op. 98,463 Michael TIMMINS, Sr., individually, and as Administrator of the Estate of Paula Timmins, Deceased, Plaintiff, v. BETH ISRAEL MEDICALHIGHWAY DIVISION et al., Defendants.
• Court: New York Supreme Court

Page 911

676 N.Y.S.2d 911

177 Misc.2d 845, 1998 N.Y. Slip Op. 98,463

Michael TIMMINS, Sr., individually, and as Administrator of the Estate of Paula Timmins, Deceased, Plaintiff, v. BETH ISRAEL MEDICAL CENTER--KINGS HIGHWAY DIVISION et al., Defendants.

Supreme Court, Kings County.

Aug. 5, 1998.

Schiavetti, Geisler, Corgan, Soscia, DeVito, Garbriele & Nicholson, L.L.P., New York

City (Thomas M. Fergus, of counsel), for New York City Health & Hospitals Corporation, defendant.

Sedgwick, Detert, Moran & Arnold, New York City (Kathleen M. Faherty, of counsel), for Beth Israel Medical Center, defendant.

DeBlasio, Figman & Epstein, P.C., New York City (Marc A. Ross, of counsel), for plaintiff.

DAVID FRIEDMAN, Justice.

The issue presented by the instant motion concerns who is to be served with a notice of claim in a wrongful death action against the New York City Health and Hospitals Corporation (HHC). Resolution of the issue requires consideration of the interrelationship between sections 7401(2) of McKinney's Unconsolidated Laws of N.Y., 2980 and 2981 of the Public Authorities Law, and 50-e(3)(a) of the General Municipal Law. In my view notwithstanding amendments adopted by the legislature in 1990, which created some ambiguity in the statutory scheme, the operative requirement continues to be that the notice of claim be served on a director or officer of HHC.

This wrongful death action has its genesis in the allegedly negligent medical care rendered to decedent, Paula Timmins, at Coney Island Hospital from October 29, 1995 through November 16, 1995, the date that decedent expired. On December 12, 1995, the proposed administrator of decedent's estate (plaintiff herein) timely served a notice of claim on the corporation counsel. This notice named the City of New York and HHC. It is uncontroverted, however, that a director or officer of HHC was never served with a notice of claim. Thereafter, this action was commenced. HHC now moves for an order dismissing the action against it on the ground that service of the notice of claim upon the corporation counsel does not comply with statutory requirements.

Prior to 1990, section 7401(2) of McKinney's Unconsolidated Laws of N.Y. provided as follows:

An action against [HHC] *** for personal injuries or death *** shall not be commenced more than one year and ninety days after the cause of action thereof shall have accrued, nor unless a notice of intention to commence such action *** shall have been filed with a director or officer of [HHC] within ninety days after such cause of action shall have accrued. All the provisions of section fifty-e of the general municipal law shall apply to such notice ***

Thus the explicit terms of the statute made clear that a notice of claim must be served on a director or officer of HHC.

Subsequently, for reasons which are discussed infra, section 7401(2) was amended by the laws of 1990, chapter 804, section 122 to read as follows:

Except in an action for wrongful death, an action against [HHC] *** for personal injuries *** shall not be commenced more than one year and ninety days after the cause of action thereof shall have accrued, nor unless a notice of intention to commence such action *** shall have been filed with a director or officer of [HHC] within ninety days after such cause of action shall have accrued. All the provisions of section fifty-e of the general municipal law shall apply to such notice *** An action against [HHC] for wrongful death shall be commenced in accordance with the notice of claim and time limitation provisions of title eleven of article nine of the public authorities law [emphasis added].

The statute as amended, therefore, requires that someone seeking to commence a wrongful death action turn for guidance to title eleven of article nine of the Public Authorities Law. As to service of a notice of claim, Public Authorities Law section 2980 as adopted in 1990 provides that "[n]o wrongful death action against a public authority or public benefit corporation shall be commenced unless a notice of claim has been served on the authority or corporation in accordance with the provisions of section fifty-e of the general municipal law." Concerning the limitations period for a wrongful death action Public Authorities Law section 2981 provides that "[a] wrongful death action against a public authority or public benefit corporation shall be commenced within two years of the happening of the death." General Municipal Law section 50-e(3)(a) in turn authorizes service of a notice of claim upon an "attorney regularly engaged in representing such public corporation" which here would be the corporation counsel.

Based upon this juxtaposition of Public Authorities Law section 2980 and General Municipal Law section 50-e(3)(a), plaintiff argues that, in a wrongful death action (as opposed to an action for personal injuries), when proceeding against HHC service upon the corporation counsel is authorized. HHC, pointing to Stallworth v. New York City Health and Hosps. Corp., 243 A.D.2d 704, 663 N.Y.S.2d 287, Oxley v. City of New York, 240 A.D.2d 643, 658 N.Y.S.2d 697, Kroin v. City of New York, 210 A.D.2d 95, 620 N.Y.S.2d 339, and Ceely v. New York City Health and Hosps. Corp., 162 A.D.2d 492, 556 N.Y.S.2d 694, asserts that the notice of claim may only be served upon a director or officer of HHC. These cases, while appearing determinative, upon close scrutiny are not. However, careful consideration of section 7401(2) of McKinney's Unconsolidated Laws of N.Y. together with the statute's legislative history compels the conclusion that service of a notice of claim upon the corporation counsel is not authorized.

The impetus for the 1990 amendment of section 7401(2) of the Unconsolidated Laws was judicial criticism expressed in Melendez v. Manhattan and Bronx Surface Transit Operating Authority, 137 A.D.2d 390, 529 N.Y.S.2d 95. Melendez called the attention of the Law Review Commission to the unreasoned disparity of the statutes of limitations for wrongful death actions between various public authorities and municipalities. Stated otherwise, the limitations period varied depending upon which public authority or municipality was held responsible for the death. As a result of Melendez' criticism a study was undertaken by the Law Revision Commission which culminated in a legislative package making uniform the time in which to commence a wrongful death action against a public authority or municipality (see, bill jacket, memorandum of the Law Revision Commission and letter by G. Oliver Koppell dated June 29, 1990, L.1990, c. 804 sections 1-126). What emerged from the package was an amended section 7401(2) and newly enacted sections 2980 and 2981. These provided for wrongful death actions to be uniformly commenced within two years of death and for the notice of claim to be served on the public authority or public benefit corporation in accordance with General Municipal Law section 50-e. The last provision generates this motion since it raises the issue of whether section 50-e(3)(a) now governs who is to be served with the notice of claim in a wrongful death action against HHC. Plaintiff's position must of course be that this is exactly what was intended by the legislature in 1990. In my view, the legislative history of the 1990 amendments precludes such an interpretation.

The approach advocated by plaintiff would attribute an absurd intent to the legislature. In this regard, under the plaintiff's approach there would be two separate schemes governing who should be served with a notice of claim interposed against HHC--one governing personal injury actions and one governing wrongful death actions. Such an inherently contradictory outcome could not have been what the...