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Heslin v. County of Greene

February 11, 2010

EUGENIA BRENNAN HESLIN, &C., APPELLANT,
v.
COUNTY OF GREENE, ET AL. RESPONDENTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Graffeo, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In this case, we conclude that the special infancy toll applicable in wrongful death actions involving sole infant distributees under Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687 [1991]) is not available for personal injury claims. We therefore affirm the order of the Appellate Division.

Plaintiff Eugenia Brennan Heslin is the administrator of the estate of the decedent, Egypt Phillips. Egypt, born in May 2001, lived with her two young sisters and their mother Tanya Rose. Egypt's biological father, a convicted felon, had abandoned her. In early 2004, Rose's boyfriend, James Smith, moved in with the family. In May and again in August 2004, Egypt was taken to health care facilities for treatment of various injuries, including a broken clavicle and head trauma. According to plaintiff, these instances of suspected abuse were reported to defendants County of Greene, County of Greene Mental Health, County of Greene Department of Social Services and/or County of Greene Child Protective Services (collectively, the County defendants). Following the August incident, Smith was apparently ordered to leave the family home. However, on November 21, 2004, Egypt died tragically as a result of injuries intentionally inflicted upon her by Smith.

About two weeks later, Smith and Rose were each charged in connection with Egypt's death. Rose pleaded guilty to criminally negligent homicide and was subsequently sentenced to a prison term of 1a to 4 years. Following a jury trial, Smith was convicted of second-degree murder and sentenced to a term of 25 years to life imprisonment.

In December 2004, shortly after Egypt's death, plaintiff was appointed as the attorney for the children, Egypt's sisters, in connection with an abuse and neglect proceeding pending in Family Court against Smith and Rose. In addition to serving as attorney for the children (formerly referred to as a law guardian) in Family Court, Surrogate's Court appointed her as the administrator of Egypt's estate in October 2006.

Until plaintiff's application, no one had petitioned Surrogate's Court to handle the administration of Egypt's estate under SCPA 1001 and 707. Rose and the biological father were each disqualified because of their felony status (see SCPA 707 [1] [d]). Although the task would have ordinarily fallen to Egypt's siblings under the priority of decedent's relatives established in SCPA 1001 (1), they too were ineligible based on their infancy (see SCPA 707 [1] [a]). Because no other relative sought to be appointed guardian for the siblings under article 17 of the SCPA, they had no adult representative who could function as the administrator or consent to anyone else assuming that role (see SCPA 1001 [2], [6]). Out of concern for the fate of Egypt's siblings, plaintiff pursued appointment as administrator pursuant to the fallback provision of SCPA 1001 (8) (b), allowing any qualified "petitioner" to become an administrator in the court's discretion.

In the course of fulfilling her duties as attorney for the children and administrator of Egypt's estate, plaintiff determined that Egypt's siblings had potential claims against the County defendants and private individuals based on their alleged negligence contributing to Egypt's death at the hands of Smith. On November 16, 2006, plaintiff served a notice of claim on the County defendants in her capacity as administrator of Egypt's estate. Five days later, plaintiff commenced this action against the County defendants alleging causes of action for wrongful death and personal injury.*fn1 Any damages recovered would ultimately benefit the siblings as Egypt's sole distributees by intestacy.*fn2 Plaintiff simultaneously moved pursuant to General Municipal Law § 50-e (5) for leave to file a late notice of claim for the personal injury cause of action.

Supreme Court granted the motion and extended the time to serve the notice of claim to November 16, 2006, the date it was actually filed. Initially, the court determined that the wrongful death claim was timely because the notice of claim was filed within 90 days from plaintiff's appointment as administrator and the action was commenced within two years of Egypt's death, as required by statute (see General Municipal Law § 50-e [1] [a]; § 50-i [1]). Turning to the personal injury cause of action, the court found that the notice of claim was untimely because it was not filed within 90 days after the claim arose. Recognizing that it lacked the discretion to extend the time beyond the expiration of the applicable one-year and 90-day limitations period, the court relied on our decision in Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687 [1991]) to conclude that the toll afforded by CPLR 208 applied, based on the infancy of Egypt's siblings, and, as a result, the statute of limitations did not begin to run until plaintiff's appointment as administrator in October 2006. In Hernandez, this Court held that the CPLR 208 infancy toll applies when an infant is the sole distributee in a wrongful death action. Relying on the factors in General Municipal Law § 50-e (5), the court granted plaintiff leave to file the late notice of claim.

The Appellate Division reversed and dismissed the personal injury claim, but agreed that the wrongful death claim was timely (53 AD3d 996 [3d Dept 2008]).*fn3 The court held that Supreme Court lacked discretion to enlarge the time to serve the late notice of claim because the personal injury claim was time-barred, reasoning:

"Supreme Court's reliance on the infancy toll of CPLR 208, on behalf of decedent's infant distributees, to extend the statute of limitations on the personal injury claim was not proper inasmuch as such a claim is brought on behalf of decedent and is personal to her, not her surviving infant distributees" (id. at 998).

We granted plaintiff leave to appeal (12 NY3d 702 [2009]).

EPTL 11-3.2 (b), referred to as the "survival statute," provides that "[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent."*fn4 As a condition precedent to initiating a personal injury action against a municipality, a notice of claim must be served within 90 days after the claim arises (see General Municipal Law § 50-e [1] [a]). The action must also be commenced within the statutorily prescribed one-year and 90-day limitations period (see General Municipal Law § 50-i [1]). Although a court is authorized to extend the filing of a notice of claim beyond the 90-day period, the time for filing may not be extended beyond the expiration of the applicable statute of limitations (see General Municipal Law § 50-e [5]).

In this case, Egypt first sustained injuries at some point in early 2004 and died on November 21, 2004. Since a notice of claim was not filed within 90 days of her death, leave to file a late notice was necessary. The personal injury claim accrued no later than the date of her death and, absent the application of a toll, the one-year and 90-day limitations period expired in February 2006. Because the request for leave to file a late notice was not made within that time frame, as mandated by General Municipal Law § 50-e (5), an extension of time to file such notice is not statutorily authorized unless the limitations period was tolled.

Plaintiff asserts that the statute of limitations for the personal injury cause of action was tolled under CPLR 208 due to the infancy of Egypt's sole distributees -- her sisters.*fn5 In particular, plaintiff submits that Supreme Court appropriately applied the rationale of Hernandez, which held that CPLR 208 tolls the statute of limitations where the sole distributee in a wrongful death action is an infant, to this personal injury claim. While the ...


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