Billman v City of Port Jervis

[*1] Billman v City of Port Jervis 2009 NY Slip Op 50957(U) [23 Misc 3d 1127(A)] Decided on May 19, 2009 Supreme Court, Orange County Lubell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 19, 2009
Supreme Court, Orange County

Denise Billman as Executrix of the Estate of LINDSAY BILLMAN, and PETER BILLMAN, Plaintiffs,

against

The City of Port Jervis and THE PORT JERVIS SCHOOL DISTRICT, Defendants.



7041-08

Lewis Jay Lubell, J.

On January 26, 2008, Lindsay Billmam ("Lindsay") died from injuries sustained from a fall through a skylight situated on the roof of the Port Jervis High School. At the time of her death, Lindsay was fifteen years old.

This action for, among other things, wrongful death based on negligence and attractive nuisance is brought by Denise Billman as Executrix of the Estate of Lindsay Billman, her late daughter, and by Lindsay's father, Peter, for loss of Lindsay's services.

Plaintiffs now move pursuant to CPLR §3211(b) to dismiss the Sixth Affirmative Defense raised by defendant Port Jervis School District (the "School District") seeking the dismissal of the complaint for failure to comply with Article 50 of the General Municipal Law.[FN1] Correspondingly, the School District moves for an Order pursuant to CPLR §3211 dismissing the complaint due to plaintiffs' failure to comply with the conditions precedent to the commencement of suit (General Municipal Law §§50-e and 50-h).

The dispositive issue raised with respect to plaintiffs' motion and one branch of defendants's motion is whether a notice of claim served in the names of two individual claimants, here Denise Billman and Peter Billman, constitutes service of a notice of claim on behalf of an estate, here Lindsay's estate, which is neither captioned nor noticed as a claimant therein and where letters of administration have yet to issue. The Court answers the question in the negative for the reasons herein stated. [*2]

As to the second issue raised, whether the Verified Complaint is subject to dismissal for Claimants failure to have complied with the hearing requirements of General Obligation Law §50-h, is decided in the negative to the extent herein indicated.

A notice of claim dated February 18, 2008 (the "Notice of Claim") was served upon the School District on or about March 28, 2008 wherein by way of caption and content Denise Billman and Peter Billman are the only named claimants (the "Claimants"). In addition to identifying the claimants as such, the Notice of Claim includes the individuals involved, the nature of the claim, the approximate time and location of the incident, the manner in which the incident occurred, and the claimed damages (see, General Municipal Law §50-e[2]). No mention is made of Lindsay's estate, although the "items of damage or injuries claimed" section of the Notice of Claim includes the words: "personal injuries and wrongful death to Lindsay Billman and loss of services sustained by her parents and natural guardians, Denise Billman and Peter Billman [emphasis added]." It would not be until April 18, 2008 that a petition for limited letters of administration would be made to the Orange County Surrogate by Denise Billman.

In response to having been served with the Notice of Claim, on April 3, 2008, the School District served upon the Claimants an April 3, 2008 Notice of Hearing pursuant to General Municipal Law §50-h setting forth a hearing date of May 12, 2008. By letter dated May 1, 2008, School District counsel made a request of Claimants' counsel for duly issued HIPAA authorizations (Health Insurance Portability and Accountability Act, 42 USC §1320d et seq.) for the release of records maintained by the Office of the Orange County Medical Examiner. A responsive HIPAA authorization dated May 5, 2008, executed by Denise Conklin-Billman, "Mother of Patient (Decedent)" was forwarded to defense counsel by cover letter of May 6, 2008. At the request of Claimants' counsel, the 50-h hearing was adjourned and rescheduled for June 10, 2008, which is well within the ninety-day statutory period, or July 2, 2008.

On June 2, 2008, the Orange County Surrogate issued letters of limited administration appointing Denise Billman the administrator of Lindsay's estate. Three days later, on June 5, 2008, the School District's lawyer requested a one to two day adjournment of the 50-h hearing for personal medical reasons. Upon Claimants' request, a lengthier adjournment was agreed upon for sometime in mid-July. In this regard, Claimants made note that Mr. Billman would not be available immediately after the earlier scheduled June 10 date due to a personal medical issue of his own.

Claimants' counsel prepared a Summons and Complaint, verified on July 1, 2008, which was filed with the Orange County Clerk on July 8, 2008. In contrast to the Notice of Claim wherein the named claimants are Denise Billman and Peter Billman, the plaintiffs in the Summons and Verified Complaint are identified as Denise Billman as Executrix of the Estate of Lindsay Billman and Peter Billman. Of note, paragraphs "39" and "40" of the Verified Complaint allege compliance with all of the conditions precedent to the initiation of the action including compliance with General Municipal Law §50-h examinations, even though the expiration period for the holding of the 50-h examination was not set to expire by statute until Wednesday, July 2, [*3]2008.

After the July 8, 2008 commencement by filing, but before the School District was served with a copy of the Summons and Verified Complaint, Claimants forwarded a letter dated July 11, 2008 to School District counsel seeking to re-schedule the 50-h hearing to allow the testimony of Mrs. Billman, it being represented that Mr. Billman was still unavailable due to his medical condition. By letter dated July 14, 2008, plaintiffs provided School District counsel with a courtesy copy of the already filed Summons and Verified Complaint. In his letter of July 21, 2008, School District counsel noted his objection to the filing of the Summons and Verified Complaint while indicating that the School District had not waived any rights under Article 50 of the General Municipal Law.

In the meantime, sometime after June 5, 2008 but before July 11, 2008, Claimants' counsel telephoned School District counsel on at least two occasions leaving voice mail messages in an attempt to re-schedule the 50-h hearing. The calls were not returned. By letter dated July 11, 2008, Claimants again attempted to schedule the 50-h hearing while also inquiring as to whether the School District had intended a waiver of same.

On August 12, 2008, issue was joined upon the School District's service of its Answer wherein, as its Sixth Affirmative Defense, the School District alleges plaintiffs failure to comply with General Municipal Law §50.

On October 15, 2008, Claimants issued yet another invitation to the School District to schedule the 50-h hearing. Another invitation would follow on January 23, 2009. Both invitations were declined. These motions follow.

It is well established that the timely filing of a notice of claim is a statutory precondition to the initiation of a personal injury action against a municipality or other public body entitled to such notice (General Municipal Law §50-e[a], supra ), here the School District.

Section 50-e(1)(a) of the General Municipal Law provides:

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate [emphasis added].

Thus, a party has ninety days from the date the claim arises or ninety days from the appointment of a representative of a decedent's estate to file a notice of claim.

The subject Notice of Claim identifies two claimants in its caption and text, Denise [*4]Billman and Peter Billman. As such, on its face, it cannot be said that a notice of claim was ever filed by Lindsay's estate.

The question, then, is whether the Notice of Claim can be deemed to have been served by or on behalf of Lindsay's estate, which question the Court answers in the negative.

Since the Notice of Claim is dated February 18, 2008, and limited letters of administration were not issued until more than three months later on June 2, 2008, neither Mr. Billman nor Mrs. Billman had legal standing or the authority to act, make a claim for, or sue on behalf of Lindsay's estate (see, Surrogate's Court Procedure Act §702 and Estates Powers and Trusts Law §5-4.1; Deutsch v LoPresti, 272 AD2d 506 [2d Dept., 2000][action commenced prior to issuance of letters of administration must be dismissed for lack of capacity to sue]; La Boy v. Children's Hosp. of Buffalo, 249 AD2d 944 [4th Dept., 1998][wrongful death action properly dismissed as beyond statute of limitation where plaintiff failed to obtain letters of administration until almost four years after commencement of the action and six years after her son's death]). The Court is without the authority or discretion to simply correct the specification of parties in a notice of claim (see, Moore v. Melesky, 14 AD3d 757, 759 [3d Dept., 2005]).

As such, the Notice of Claim herein identifying Denise Billman and Peter Billman as claimants cannot be construed as having been issued on behalf of Lindsay's estate. This is so even though the "items of damage or injuries claimed" section of the Notice of Claim includes the words: "personal injuries and wrongful death to Lindsay Billman . . . and loss of services sustained by her parents."

Absent court leave, not herein requested, a notice of claim that is served beyond the required ninety-day period is deemed a nullity (Van der Lugt v. City of New York, 36 AD2d 915 [1st Dept., 1971]; Mack v. City of New York, 265 AD2d 308 [2nd Dept., 1999); Kokkinos v. Dormitory Auth. of New York, 238 AD2d 550 [2nd Dept., 1997). Certainly then, the total absence of a notice of claim served by or on behalf of a proposed plaintiff, here Lindsay's estate, is a fatal defect which can only be cured by a timely and successful General Municipal Law §50-e(5) application.

The School District has established that Lindsay's estate is not a named claimant in any notice of claim served upon it and the notice of claim upon which the estate seeks to rely, the February 18, 2008 Notice of Claim, came into existence and was served approximately three months before anyone was authorized to act on its behalf. Even upon recognition of the purpose behind 50-e of the General Municipal Law, which is to afford municipal corporations an adequate opportunity to investigate the circumstances surrounding an accident and to assess the merits of any claims while the information is still likely to be available (see, Altmayer v. City of New York, 149 AD2d 638, 639 [purpose of notice of claim is]; see also, Whitfield v. Town of Oyster Bay, 225 AD2d 763, and with an appreciation that 50-e "should not operate as a device to defeat the rights of persons with legitimate claims" (Camacho v. City of New York, 187 AD2d 262, 263 [1st Dept., 1992]), the Court must conclude that the failure of Lindsay's estate to have served through a legally authorized estate representative any notice of claim on its own behalf or [*5]properly in conjunction with that of another, or to have sought by way of motion or cross-motion leave to file a late notice of claim under General Municipal Law §50-e(5), leaves this Court no choice but to dismiss this action to the extent that it is brought on behalf of Lindsay's estate. The failure of the estate to have complied with a condition precedent to the commencement of this action is a fatal defect over which this Court has no discretion within the context of the applications currently before it.[FN2]

On the other hand, the Court finds no merit to that aspect of the School District's motion which is to dismiss the Verified Complaint as it relates to Peter Billman's claim for the loss of services of Lindsay.

"Generally, compliance with a municipality's timely request for a General Municipal Law §50-h examination is a condition precedent to commencement of an action by a claimant and noncompliance is a ground for dismissal'" (Southern Tier Plastics, Inc. v. County of Broome , 53 AD3d 980 [3d Dept., 2008] quoting Matter of Brian VV. v. Chenango Forks Cent. School Dist., 299 AD2d 803, 804, 751 NYS2d 59 [2002] and citing Misek-Falkoff v. Metropolitan Tr. Auth. [MTA], 44 AD3d 629, 629 [2d Dept., 2007]). In that regard, where a 50-h hearing is adjourned at the request of a claimant to a non-specified date beyond the expiration of the 90-day period by which the hearing is statutorily set to expire, it is incumbent upon the claimant to schedule the 50-h hearing to take place during that generalized period before commencing the action (see, Bernoudy v. County of Westchester, 40 AD3d 896 [2nd Dept., 2007][motion to dismiss complaint properly granted where GML §50-h hearing is adjourned plaintiff's request, and action is commenced without rescheduling a new hearing date after the last adjournment]).

Here, the record establishes that the 50-h hearing was adjourned beyond the statutory 90-day period to sometime in mid-July 2008 at Claimants' request following the School District' June 5, 2008 request for a one to two day adjournment of the then scheduled June 10, 2008 50-h hearing. Claimants efforts to re-schedule the hearing during the agreed upon mid-July period, however, were thwarted by School District counsel's failure to have returned voice mail messages made in that regard.

Under these circumstances, the Court cannot fault the Claimants for having failed to re-schedule the 50-h hearing during the agreed upon period, mid-July 2008. This is so whether or not Peter Billman would have been available for the hearing since such happenstance does not excuse School District counsel's failure to have returned timely calls made to re-schedule the 50-h hearing.

Nor is the Court persuaded that the premature verification of the Complaint warrants a [*6]difference result. That is, under the circumstances of this case, the fact that the complaint attests to compliance with the section 50-h of the General Obligations Law two days before the statutory expiration of July 2, 2008, carries no legal consequences.

Based upon the foregoing, it is hereby

ORDERED, that plaintiffs' motion for an Order dismissing defendant Port Jervis School District's Sixth Affirmative Defense pursuant to CPLR §3211(b) is granted to the extent that it relates to the claims advanced in the Verified Complaint by Peter Billman and is otherwise denied; and, it is further

ORDERED, that defendant Port Jervis School District's motion for an Order pursuant to CPLR §3211 dismissing the Verified Complaint due to plaintiffs' failure to comply with the conditions precedent to the commencement of suit pursuant to General Municipal Law §§ 50-e is granted to the extent that it relates to the claims brought by Denise Billman as the Executrix of the Estate of Lindsay Billman; and, it is further

ORDERED, that defendant Port Jervis School District's motion for an Order pursuant to CPLR §3211 dismissing the Verified Complaint due to plaintiffs' failure to comply with General Municipal Law §50-h is denied to the extent that it relates to plaintiff Peter Billman.

The foregoing constitutes the Opinion, Decision and Order of the Court.

The following papers, numbered 1 through 8 were considered in connection with the determinations herein made:

Dated: Goshen, New York

May 19, 2009

__________________________________

Hon. Lewis J. Lubell, J.S.C.

TO:

Corey Stark, Esq.

The Dweck Law Firm, LLP

75 Rockefeller Plaza, 16th Floor

New York, NY 10019

Tarshis Catania Liberth Mahon

& Milligram, PLLC

One Corwin Court [*7]

PO Box 1479

Newburgh, NY 12550 Footnotes

Footnote 1: The action has since been discontinued as against defendant City of Port Jervis.

Footnote 2: Whether or not there existed and/or still exists a valid basis upon which the Court could allow, in its discretion, the Estate to file a late notice of claim pursuant to General Municipal Law §50-e(5) is not determinative of the issue now before the Court, and no such application is currently pending.