(Download) "Cheryl Gibbons v. City Troy Et Al." by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Cheryl Gibbons v. City Troy Et Al.
- Author : Supreme Court of New York
- Release Date : January 02, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
Appeal from an order of the Supreme Court at Special Term (Cobb, J.), entered February 16, 1982 in Rensselaer County, which granted defendants motion to dismiss plaintiffs second and fourth causes of action and denied plaintiffs cross motion for permission to serve a late notice of claim. Plaintiffs two infant children, ages five and seven years, died on February 17, 1980, as the result of a fire in her residence in the Margaret W. Phelan Apartments in Troy, New York. Limited letters of administration were granted to plaintiff on November 7, 1980, and between January 15 and January 16, 1981 plaintiff served on these defendants a notice of claim for wrongful death and conscious pain and suffering of her children. The summons with notice of the commencement of the action was served between April 15 and April 20, 1981. After service of the complaint, defendants moved to dismiss the second and fourth causes of action, which alleged conscious pain and suffering, for plaintiffs failure to file a notice of claim within 90 days of the occurrence. Plaintiffs opposing papers and cross motion for leave to file a late notice of claim were served in October, 1981, more than one year and 90 days after the occurrence. Special Term, noting the distinction between the causes of action for conscious pain and suffering and wrongful death, granted defendants motion and denied plaintiffs cross motion. We agree with the determination of Special Term. The notice of claim, which was served within 90 days after the issuance of the letters of administration, but more than 90 days after the occurrence of the fire on February 17, 1980, is untimely in regard to the causes of action for conscious pain and suffering. Section 50-e (subd 1, par [a]) of the General Municipal Law clearly requires the notice of claim in a tort action against a public corporation to "be served in accordance with the provisions of this section within ninety days after the claim arises." Unlike the causes of action for wrongful death, which measure the 90-day period from the appointment of an executor or administrator [91 A.D.2d 707 Page 708]