Vastola v. Maer
| Decision Date | 14 July 1975 |
| Citation | 370 N.Y.S.2d 955,48 A.D.2d 561 |
| Parties | James VASTOLA, as administrator, etc., Respondent, v. Richard MAER et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Evans, Orr, Pacelli, Norton & Laffan, P.C., New York City (Walter G. Evans and Alfred V. Norton, Jr., New York City, of counsel), for appellants Maer.
Gordich, Cohen & DeLucia, Great Neck (Bernard Meyerson, Brooklyn, of counsel), for appellants Francis.
Costantino & Napolitano, Staten Island (Peter J. Napolitano, Staten Island, of counsel), for respondent.
Before RABIN, Acting P.J., and MARTUSCELLO, COHALAN, BRENNAN and MUNDER, JJ.
The defendants appeal from an order of the Supreme Court, Richmond County, which granted the plaintiff's motion to remove the case from the Civil Court of the City of New York to the Supreme Court, Richmond County, to amend the complaint to set forth a cause of action for wrongful death and to increase the amount of damages requested. The ordr should be affirmed, with $20 costs and disbursements jointly against appellants appearing separately and filing separate briefs.
Following an automobile accident which occurred on July 10, 1971, the plaintiff brought this action in the Civil Court of the City of New York, Richmond County, on May 24, 1972, alleging negligence on the part of the defendants and requesting a total of $14,000 damages for injury to personal property, for personal injuries sustained by his son, James Vastola III, aged 16, and for consequential damages sustained by the plaintiff-father. It is alleged that the two automobiles of the defendants collided, sending one of them into the parked automobile in which young Vastola was sitting. It is conceded that he died of Leukemia on August 14, 1972. On June 25, 1974, the plaintiff, as administrator of his son's estate, moved in the Richmond Supreme Court for leave to amend the complaint so as to assert an action for wrongful death, to increase the amount of damages requested by the plaintiff, both as administrator and parent, and to remove the case from the Civil Court to the Supreme Court, which would have jurisdiction over the increased amount claimed. The motion was brought by order to show cause dated June 28, 1974, with return date July 9, 1974. The motion papers, including the proposed amended complaint, were served on or about June 28, 1974. By order dated September 5, 1974, Special Term granted the motion in all respects and required that the amended complaint be served within 20 days after entry of the order. Although it does not appear from the record exactly when each defendant was served with the amended complaint pursuant to the order, no claim is made that the 20-day limitation was not complied with. Defendants Maer assert that service was made October 18, 1974.
On this appeal the defendants argue that the order should be reversed on the ground that the wrongful death cause of action asserted in the amended complaint is barred by the applicable two-year Statute of Limitations (EPTL 5--4.1). This Statute of Limitations begins to run at the decedent's death (August 14, 1972) and in this case would bar any claim interposed after August 14, 1974. The motion for leave to amend was made June 28, 1974, about a month and a half prior to the expiration of the two-year period, and the return date of the motion, July 9, 1974, was over a month prior to the expiration date. However, Special Term did not grant leave to amend until Septembeer 5, 1974, 22 days following the last day to interpose a claim under the statute. Of course, the amended complaint was served pursuant to the order sometime later still.
The initial question posed is: When is a claim, asserted for the first time in a complaint amended by permission, 'interposed' (CPLR 203) so as to stop the running of the Statute of Limitations? Apparently, the precise issue involved is not covered by statute and has not been previously decided. The CPLR informs that a claim asserted in an amended pleading will relate back to the date of interposition of the original pleading if the required notice of the occurrence in question was given in the original pleading (CPLR 203, subd. (e)). However, there is no provision establishing when a claim asserted in an amended complaint is interposed in the absence of, or disregarding, such notice. Neither is there controlling case law on the point.
The defendants argue that such a claim is not interposed until the service of the amended complaint pursuant to leave. If this is so, the claim for wrongful death was not interposed until after September 5, 1974, and, unless held to have related back to an earlier date, would be barred by the Statute of Limitations. The plaintiff argues that the claim is interposed when the motion for leave to amend is made, and the supporting papers, including the proposed amended complaint is served. If this is the rule, the wrongful death claim was interposed on June 28, 1974 and would be timely.
From the dates involved, it can be seen that the weakness of the defendants' theory is that, whether the plaintiff may timely serve the amended complaint depends upon the speed with which the court decides the motion for leave to amend. If the motion had been decided shortly after the return date, the plaintiff could have served the amended complaint before the expiration of the two-year time period.
The purpose of the Statute of Limitations is to force a plaintiff to bring his claim within a reasonable time, set out by the Legislature, so that a defendant will have timely notice of a claim against him, and so that stale claims, and the uncertainty they produce, will be prevented. In order to prevent uncertainty on the part of either the plaintiff or the defendant, it is desirable that the date by which a claim must be made, and the manner in which the defendant must be notified of a claim so as to stop the statute, should be certain. The purpose of the statute is in no way served by a rule which would place the plaintiff in a position whereby the timeliness of his claim would depend upon the speed with which a court decides a motion. In the present case the defendant had notice of the claim before the expiration of the Statute of Limitations when the supporting papers containing the proposed amended complaint were served, and we find that this is the most appropriate time to deem a claim asserted in an amended complaint to be 'interposed' so as to stop the Statute of Limitations. As compared with other possibilities (i.e., the date of service of the amended complaint following leave to amend, the date of the decision to allow leave to amend and the return date of the motion), deeming the claim to be interposed on the date the motion is made and the proposed amended complaint served has the advantage of being certain and completely within the plaintiff's control, not subject to the vagaries of calendar practice or calendar congestion. That the claim be deemed interposed at this point is also appropriate since service of the proposed amended complaint with the notice of motion gives the defendant notice of the claim.
Holding that a claim in an amended complaint is interposed only when the amended complaint is served pursuant to order would also create a procedural trap. Since neither the three-year Statute of Limitations for personal injuries, nor the two-year wrongful death statute, had expired when the plaintiff served his motion for leave to amend the complaint, the plaintiff could have simply served a summons in another plenary action claiming wrongful death and then have moved for consolidation or a joint trial. If consolidation were granted, the plaintiff would have stopped the statute and been in the...
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...are deemed interposed on the date the motion for leave is served, assuming that the motion is granted (see Vastola v. Maer, 48 A.D.2d 561, 565, 370 N.Y.S.2d 955 [2d Dept. 1975], affd 39 N.Y.2d 1019, 387 N.Y.S.2d 246, 355 N.E.2d 300 [1976] ; Calamari v. Panos, 131 A.D.3d 1088, 1090, 16 N.Y.S......
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Nassau Chapter Civil Service Employees Ass'n, Local 830, AFSCME, Local 1000, AFL-CIO v. County of Nassau
...a reasonable period of time. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224; Vastola v. Maer, 48 A.D.2d 561, 370 N.Y.S.2d 955, affirmed 39 N.Y.2d 1019, 387 N.Y.S.2d 246, 355 N.E.2d 300. The statutes of limitations are more than provisions or rules......
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...rule which would render the timeliness of a claim dependent upon the speed with which a court decides a motion (see, Vastola v. Maer, 48 A.D.2d 561, 564, 370 N.Y.S.2d 955, affd. 39 N.Y.2d 1019, 387 N.Y.S.2d 246, 355 N.E.2d 300). We similarly decline to adopt plaintiff's position that the fi......
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Mitchell v. New York City Health and Hospitals Corp.
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