constitutes an intentional tort by the corporation. Aetna Casualty & Surety Co. v. Shuler, 72 A.D.2d 591, 421 N.Y.S.2d 87 (App. Div., 2d Dep't 1979) (shooting by corporate officer and managing agent).
For reasons already stated, the complaint sufficiently alleges that Avellino was such an agent and acted so as to make SSC Corporation and Salem Corporation liable for injuries inflicted on their behalf. The administratrices may make their state law claims against them. EPTL § 11-3.2.
Whether there is a valid claim by Jerry Kubecka for "loss of services" of his son is unclear. The complaint states that Robert M. Kubecka was trained for and learned the garbage carting business of his father, became "completely responsible" for its operation, and "rendered other services to his father, "who was incapable of performing these duties himself because of ill health."
To the extent the claim is for the loss to Jerry Kubecka for the injury suffered by the Kubecka Corporations, the claim is, for the reasons given above, not one for injury proximately caused to Jerry Kubecka by the alleged acts of defendants.
To the extent that the claim is to recover for loss of services due to the death of Robert Kubecka, Jerry Kubecka has no standing. A claim for wrongful death can be brought only by the decedent's personal representative and only to recover for the surviving distributees' "pecuniary injuries." See, e.g., Meroni v. Holy Spirit Ass'n for Unification, 119 A.D.2d 200, 506 N.Y.S.2d 174, 178 (2d Dep't 1986).
Under New York law a father may recover from a tortfeasor for the loss from the injury of services of a child. Martell v. Boardwalk Enterprises, 748 F.2d 740, 754 (2d Cir. 1984); Bartlett v. General Electric Co., 90 A.D.2d 183, 457 N.Y.S.2d 628, 630 (3d Dep't 1982). But the recovery by the father is restricted to the loss of the services of the son that would have been rendered between the infliction of the injury and death. Ohnmacht v. Mt. Morris Electric Light Co., 66 A.D. 482, 73 N.Y.S. 296 (1901). Where a son is killed instantaneously the father has no claim. Id.
It is unclear from the complaint how long Robert M. Kubecka lived after the assault upon him. The claim for battery alleges that he suffered "great physical and mental pain, and died on August 10, 1989." It seems likely that any services the son could have rendered between the time of the battery and the time of death are insignificant.
In any event, for the reasons hereafter stated, the battery claims are barred by the statute of limitations.
STATUTE OF LIMITATIONS FOR STATE LAW CLAIMS
The New York statute of limitations is one year for battery claims, New York Civil Practice Law and Rules (CPLR) § 215, and two years for wrongful death claims, EPTL § 54.1(1). The moving defendants say both types of claims are barred.
The New York courts have held that they have the power to bar the assertion of a statute of limitations where the defendant has concealed his wrongdoing and thus produced a delay between the accrual of a cause of action and the institution of suit. General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125, 272 N.Y.S.2d 337, 340, 219 N.E.2d 169 (1966).
The complaint states that Avellino and Casso conspired with others to keep secret their wrongdoing and used fraudulent and violent means, including intimidation of witnesses and threats of murder, to that end. The complaint alleges that Avellino's acts were on the behalf of the defendant corporations and that as a result of the conspiracy to keep the wrongdoing secret the plaintiffs were unable to discover the causes of action against not only Avellino and Casso but also against the defendant corporations until the indictment of Avellino and Casso was made public. The court records show that date as April 12, 1993.
That date was more than a year before the filing of the complaint. Even if the limitation period as to the battery claims was tolled by Avellino's wrongdoing, those claims are barred by the one year limitation period in CPLR § 215.
If the alleged facts concerning claimant can be established, the wrongful death claims were timely brought because the two year limitations' period in EPTL § 5-4.1(1) would have been tolled until a time when that period had not expired.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiff corporations have moved for summary judgment on their RICO claims against Avellino and the defendant corporations.
Plaintiffs' papers are insufficient to warrant a conclusion that the four year RICO statute of limitations was in fact tolled for a length of time to make timely the filing of the complaint in June 1994. There is no affidavit in the record from any of the plaintiffs as to when they learned, or should have learned in the exercise of due diligence, enough facts to require the tolling to end. There is a conclusory affidavit executed by plaintiffs' attorney that plaintiffs commenced the action "as soon as they ascertained the facts relevant to meet RICO's pleading requirement." This is an inadequate basis for granting a motion for summary judgment.
Moreover, as to defendant corporations, there is a genuine issue of fact as to whether Avellino owned or controlled them.
The court need not now decide whether there are other issues of fact that preclude summary judgment.
DEFAULT JUDGMENT AGAINST CASSO
Casso was served with the summons and complaint on September 1, 1994. To date he has apparently not appeared in the action. If the clerk of the court so certifies, the court will enter judgment against Casso.
The RICO claims by plaintiffs Nina S. Kubecka, Cathy Lynn Kubecka-Barstow, and Jerry Kubecka are dismissed. Plaintiffs' state law claims for battery are dismissed as barred by the applicable statute of limitations. The motion to dismiss is in all other respects denied. Plaintiffs' motion for summary judgment on the remaining RICO claims is denied. Upon appropriate certificate of the clerk of the court a default judgment may be entered against defendant Anthony Casso.
Dated: Brooklyn, New York
August 30, 1995
Eugene H. Nickerson, U.S.D.J.
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