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GREGORY v. MONROE CTY. WATER AUTH.

July 31, 1992

FRANCIS I. GREGORY, PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL PARKS, Plaintiffs,
v.
MONROE COUNTY WATER AUTHORITY and DUROCHER DOCK & DREDGE, INC., Defendants.



The opinion of the court was delivered by: MICHAEL A. TELESCA

 This diversity action arises from an accident that occurred on October 4, 1990 in Greece, New York, and which resulted in the death of Michael E. Parks. His mother Frances I. Gregory, as personal representative of his estate, brings this action against the Monroe County Water Authority ("MCWA") and Durocher Dock and Dredge, Inc. ("Durocher") for the wrongful death of her son. Ms. Gregory is a citizen of Maryland. Pursuant to the § 1109 of the Public Authorities Law, plaintiff filed a notice of claim on December 31, 1990.

 Michael E. Parks ("Decedent") was a commercial diver employed with Parks Diving Corporation ("Parks Diving"), a Maryland corporation. In September of 1990, MCWA and Durocher entered into a contract whereby Durocher agreed to provide certain construction services and equipment for the "Zebra Muscle Control Strategy, Installations of Intake Piping Contract 1G" (the "Zebra Project"), an intake pipe at the Shoremont Water Treatment Plant. Also during that month, Durocher and Parks Diving entered into an agreement whereby Parka Diving would provide certain services and equipment for the Zebra Project.

 On October 4, 1990, the Decedent was engaged in underwater construction work inside a pipe extending from the MCWA facility to Lake Ontario at the Zebra Project. Plaintiff alleges that because of defendants' negligence: (1) the facility's pumping system was not deactivated causing strong currents and pressure inside of the pipe, and (2) the blueprints provided to Parks Diving were inaccurate and did not show a second pipe which exacerbated the strong currents and pressure. Plaintiff states in her complaint that as a result of this negligence, Decedent was caught in the strong cross currents and drowned.

 Defendant MBA now moves to dismiss the claims against it. Plaintiff opposes this motion and cross moves to amend her complaint.

 DISCUSSION ...

 I. Plaintiff's Motion to Amend Complaint

 Plaintiff has cross moved under Rule 15 of the Federal Rules of Civil Procedure for an order granting plaintiff leave to amend her complaint. Under Fed. R. Civ. P. 15(a), leave to amend a pleading "shall be freely given when justice so requires." In the absence of undue delay, bad faith, dilatory motive on the part of the movant, or undue prejudice to the opposing party by virtue of allowance of the amendment, the amendment will be granted. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).

 Generally, plaintiff's proposed amendments state that the complaint alleges two separate causes of action, for wrongful death and for personal injury, each for one million dollars; and, that a notice of claim was timely filed as rehired by General Municipal Law § 50-i(1)(b). Plaintiff's amendments are not substantial and if allowed would not unduly prejudice the defendants. Defendants do not allege undue delay, bad faith, or dilatory motive on the part of the plaintiff. Plaintiff's motion to amend her complaint is, therefore, granted.

 II. Defendant MCWA's Motion to Dismiss

 MCWA moves to dismiss plaintiff's claims for the following reasons: (a) the action was filed after the statute of limitations had run; (b) the plaintiff lacks capacity to sue for wrongful death; (c) the complaint does not state two separate causes of action, one for personal injuries and one for wrongful death; and (d) the notice of claim was made only for the wrongful death claim and not for the personal injury claim. As stated above, this Court has allowed an amendment to the complaint providing two separate causes of action, thus MCWA's claim regarding this issue will not be addressed further.

 1. Statute of limitations

 MCWA claims that the personal injury action against it is untimely. MCWA argues that Title 8-A of the Public Authorities Law ("PAL"), the New York State Local Water and Sewer Authority Act (the "Act"), applies to the MCWA; and, specifically, that § 1196-m(1) of the PAL sets forth the applicable statute of limitations for actions against the MCWA. Defendant MCWA further states that § 204(a) of the CPLR has been interpreted to add a thirty day extension to the statutory one-year period. MCWA argues that this action is outside of the prescribed statute of limitations because it was filed on January 6, 1992, one year and ninety four days after Decedent's death, and sixty four days after the expiration of the statute of limitations.

 The question of whether § 1196-m(1) sets the applicable statute of limitations for personal injury actions against the MCWA has not been previously addressed by any court and there is no legislative history regarding the applicability of Title 8-A to the MCWA. To construe the meaning of this ...


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