APPEAL from an order of the Supreme Court at Special Term (MARKOWITZ, J.), entered September 11, 1954, in Bronx County, which granted a motion by plaintiff under rule 103 of the Rules of Civil Practice to strike out as sham the defense that plaintiff had failed to comply with the provisions of section 50-e of the General Municipal Law.
Morris G. Zirin of counsel (Bannigan & Zirin, attorneys), for respondent.
Fred Iscol of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for appellant.
Plaintiff's intestate was injured on March 3, 1953, and died later on the same day. The complaint alleges two causes of action in tort against the City of New York (and others) for (1) conscious pain and suffering, and (2) wrongful death.
The city has pleaded as a separate defense to both causes of action that plaintiff has failed to comply with section 50-e of the General Municipal Law, which provides, in substance, that in any case founded on tort notice of claim must be given to the municipality within ninety days 'after the claim arises.'The statute further provides that when a person entitled to make a claim dies before expiration of the time limited for service of
the notice, the court in its discretion may grant leave to serve a notice of claim within a reasonable time after expiration of the ninety days. Application for such leave, however, must be made within one year 'after the happening of the event upon which the claim is based,' and must be made before the commencement of an action to enforce the claim. There is broad power in the court to sanction amendments to a notice of claim even down to the time of trial, except amendments relating to time or manner of service.
It appears that the plaintiff administratrix was appointed on August 27, 1953, and the notice of claim in this case was served on October 22, 1953. The action against the city was commenced on March 3, 1954. There was a single notice of claim 'to recover damages for the wrongful death'. It does not refer to any claim for pain and suffering of the decedent. The date of service of the notice was, of course, more than ninety days after the date of injury and death, but less than ninety days after appointment of the plaintiff as administratrix.
In July, 1954, the plaintiff brought on the instant motion to strike the city's defense based on the alleged untimeliness of the notice of claim herein. The Special Term granted the application, and held that the notice of claim was timely as to the death action because the ninety days' period for service of the notice commenced to run from the date of appointment of the administratrix. In respect to the cause of action for conscious pain and suffering, the Special Term stated that, in the exercise of its discretionary power, it would find that the notice of claim was also timely served. The Special Term, however, did not indicate whether it was exercising discretionary power under subdivisions 5 or 6 of section 50-e of the General Municipal Law. The notice was not amended to include any claim for conscious pain and suffering or in any other respect, nor was any application made to the court for such relief. It may be noted that more than a year had elapsed since the 'happening of the event upon which the claim is based'.
On this appeal the city urges that the recent decision in Winbush
v. City of Mount Vernon (306 N.Y. 327), raises a question as to the
timeliness of the notice of claim in respect to the death action. We are called upon to decide whether the Court of Appeals in that case intended to construe section 50-e of the General Municipal Law as requiring that the ninety days for service of a notice of claim for wrongful death be measured from the date of death rather than the date of appointment of
the legal representative. The cases prior to Winbush (supra) had
consistently held that the time for filing claims for wrongful death ran from
the date the executor or administrator was appointed. (See, e.g., Crapo v. City of Syracuse,
183 N.Y. 395; Conway v. City of New York, 139 App.Div. 446, affd. 208 N.Y. 567;
Bernreither v. City of New York, 123 App.Div. 291, affd. 196 N.Y. 506, and
Barnes v. City of Brooklyn, 22 App.Div. 520, 521.) In these cases, it is true, the statutes generally required that the notice of claim against the municipality be filed within fixed period 'after such cause of action shall have ...