George v Phippen

[*1] George v Phippen 2018 NY Slip Op 50809(U) Decided on June 5, 2018 Supreme Court, St. Lawrence County Farley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2018
Supreme Court, St. Lawrence County

Douglas M. George and JOANNE SHENANDOAH, Plaintiffs,

against

Derec C. Phippen and AND TOWN OF STOCKHOLM, Defendants.



152046



Appearances: Peter M. Hobaica, LLC (Peter M Hobaica, Esq., of counsel), attorneys for Plaintiffs; FitzGerald Morris Baker Firth, PC (Michael A. Brandi, Esq., of counsel) attorneys for Defendants.
Mary M. Farley, J.

On July 19, 2016, Plaintiff Douglas M. George ("George") was involved in a motor vehicle accident with a truck owned by Defendant Town of Stockholm, New York ("Town"), and operated by Defendant Derec C. Phippen ("Phippen") during the course of Phippen's employment for the Town. George was operating a 2013 Toyota sedan owned by his wife, Plaintiff Joanne Shenandoah ("Shenandoah"). Because he did not timely serve a notice of claim under New York General Municipal Law ("GML") § 50-e (1), George commenced a special proceeding ("Special Proceeding") (Index No. 149142) by order to show cause ("OSC") seeking leave to serve the Town and Phippen with a late notice of claim under GML § 50-e (5). This Court granted George's application, and the Order ("Order") was filed and entered with the St. Lawrence County Clerk on February 27, 2017. On Monday, November 27, 2017, George and Shenandoah filed a Summons and Complaint using the Index Number of the Special Proceeding. Now before the Court is Defendants' motion to dismiss this action pursuant to NY C.P.L.R. § 3211 (a) (5) as barred by the one year and 90-day statute of limitations set forth in GML § 50-i (1). For the reasons which follow, the Court denies Defendants' motion to dismiss with respect to George's cause of action, and grants Defendants' motion with respect to Shenandoah's claims.

PAPERS CONSIDERED

The Court has considered the following submissions on Defendants' pending motion:

1. Affirmation of Defendants' counsel Michael E. Brandi, Esq., ("Brandi") dated January 18, 2018 ("Brandi aff.");

2. Affirmation in Opposition of Plaintiff's counsel, Peter M. Hobaica, Esq., ("Hobaica") dated February 26, 2018 ("Hobaica aff.");

3. Brandi Reply Affirmation dated March 6, 2018 ("Brandi reply aff.");

4. Affidavit of Process Server Donald J. Tracy ("Tracy") dated May 10, 2018, showing personal service of OSC on Phippen on January 18, 2017;

5. Tracy Affidavit dated May 10, 2018, showing personal service of OSC on Town Clerk Heather Kish on January 18, 2017; and,

6. Brandi Affirmation in Further Support of Motion to Dismiss ("Brandi third aff."), dated May 15, 2018.

Items 1-3 were properly and timely submitted. Because these submissions did not include proof as to when and by what means the OSC had been served on Defendants, the Court's May 4, 2018, letter to counsel instructed as follows:

Plaintiffs' counsel is directed to provide proof, by supplemental affirmations or affidavits, of when and how the signed Order to Show Cause and the papers upon which was granted were served upon the Town of Stockholm, New York and Derec C. Phippen within ten (10) business days. If Defendants' counsel wishes to submit any affidavit or affirmation in response to Plaintiffs' additional submission, they are directed to do so within five (5) business days thereafter.

Submissions 4-6 were received in accordance with this directive, and therefore have been considered by the Court. Hobaica also submitted, without requesting leave of Court, his May 17, 2018, Affirmation in Further Opposition of Motion to Dismiss. Brandi has objected to this submission as improper under both C.P.L.R. § 2214 (b) and the Court's May 4, 2018, letter. The Court agrees with Defendants, and has not considered or relied upon Hobaica's May 17, 2018, affirmation.

SUMMARY OF FACTS

On December 29, 2016 — more than five months after the July 19, 2016 accident — George commenced the Special Proceeding. See Brandi aff. at ¶ 5. On January 4, 2017, this Court signed the OSC [Ex. B to Brandi aff.], directing the Town and Phippen to show cause why an Order should not be made granting George leave to serve his proposed Notice of Claim upon them. In pertinent part, the OSC directed:

"LET SERVICE of a copy of this Order to Show Cause, together with the papers upon which it is granted, upon the Town of Stockholm, New York and Derec C. Phippen by personal service or certified mail, return receipt requested, on or before the 31st day of January, 2017, be deemed good and sufficient service."

Id. at pg. 2.

The OSC was personally served upon Phippen and the Town (through Town Clerk Heather Kish) on January 18, 2017. See Tracy Affidavits. Plaintiffs have not provided proof of service of the OSC by certified mail. George served his notice of claim dated November 29, 2016 ("Notice of Claim") upon Defendants "[o]n or about January 20, 2017." Brandi aff. at ¶ 8 & Ex. D (Notice of Claim).

After counsel for Defendants advised the Court the Town and Phippen did not intend to [*2]oppose George's Order to Show Cause, on January 25, 2017, this Court signed the Order [Ex. C to Brandi aff.] permitting George to serve the Notice of Claim upon them both. The Order was filed with the St. Lawrence County Clerk on February 27, 2017. See Hobaica aff. at ¶ 4 & Ex. 1 [date-stamped Order]; see Brandi Reply aff. at ¶ 6. The Notice of Claim alleged a claim for George only, and did not mention Shenandoah or assert a claim on her behalf.

On April 11, 2017, Defendants conducted an examination of George pursuant to GML § 50-h. George testified the accident took place July 19, 2016, as he was driving to Canada for the purpose of speaking at a cultural seminar, when Defendants' dump truck veered to its left before making a right turn and striking the vehicle which George was operating. See Transcript of GML § 50-h hearing [Ex. E to Brandi aff.], at 12, 13. At this examination, George testified he had been married to Shenandoah for 25 years; they work "as a partnership" where "she does music and I do the cultural component"; and, his wife "experienced liver failure and [ ] hasn't been working steadily since July of 2015." Id. at 5, 10-11, 63. Shenandoah was not examined pursuant to GML § 50-h because she was not identified as a claimant in the Notice of Claim. See Brandi aff. at ¶ 13.

On Monday, November 27, 2017 — 496 days after the July 19, 2016, accident — Plaintiffs filed a Summons and Complaint [FN1] using the Index Number from the Special Proceeding, listing both George and Shenandoah as Plaintiffs, and setting forth a first cause of action for George's injuries, and a second cause of action alleging a derivative claim on behalf of Shenandoah. By letter Order signed January 29, 2018, in the Special Proceeding [Ex. 2 to Hobaica aff.], the Court directed Plaintiffs to acquire a new index number and the Clerk to assign that index number nunc pro tunc to the November 27, 2017, filing of the Summons and Complaint. Plaintiffs' Amended Complaint dated February 1, 2018 ("Complaint"), correctly identifies July 19, 2016 as the date of accident. Complaint [Ex. 3 to Hobaica aff.] at ¶¶ 6-9. Plaintiffs' counsel acknowledges any earlier references that July 18, 2016, was the accident's date were "typographical date errors." Hobaica aff. at ¶ 10.

DISCUSSION

Defendants' motion argues this action must be dismissed on the ground Plaintiffs failed to comply with the one year and 90-day statute of limitations set forth in GML § 50-i (1). "To dismiss a cause of action pursuant to CPLR § 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired." Krog Corp. v. Vanner Group, Inc., 158 AD3d 914, 915-16 (3d Dep't 2018) (internal quotation marks and citation omitted). In considering such a motion, the Court "must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff." Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 AD3d 815, 816 (2d Dep't 2008); accord: Davis v. CornerStone Tel. Co., LLC, 61 AD3d 1315, 1316 (3d Dep't 2009); Norddeutsche Landesbank Girozentrale v. Tilton, 149 AD3d 152, 158 (1st Dep't 2017). If a defendant meets its burden on motion, "'[t]he burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced [*3]within the period propounded by the defendant.'" State of NY Workers' Compensation Bd. v. Wang, 147 AD3d 104, 110 (3d Dep't 2017) (internal quotation marks and citation omitted); accord: Loiodice v. BMW of N. Am., LLC, 125 AD3d 723, 724-25 (2d Dep't 2015).

Defendants satisfy their initial burden on motion. The statute of limitations in GML § 50-i (1) states an action against a town "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based," unless the statute has been tolled. E.g., Pierson v. City of New York, 56 NY2d 950, 954 (1982); Sager v. County of Sullivan, 145 AD3d 1175, 1177 (3d Dep't 2016), lv denied, 29 NY3d 902 (2017). "[T]he applicable limitations period is one year and 90 days from 'the happening of the event upon which the claim is based.'" Matter of Ezzo v. City of Schenectady, 7 AD3d 954, 954-55 (3d Dep't 2004) (quoting GML § 50-i [1]). "Pursuant to General Municipal Law § 50-i (1), a plaintiff has 'one year and ninety days' in which to commence an action 'after the happening of the event.'" Decicco v. City of Syracuse, 68 AD3d 1771, 1772 (4th 2009) (emphasis in original). "In calculating the limitations period, the day of the accident is excluded, the one-year period is counted as 365 days, and then the 90-day period is counted." Turner v. City of New York, 94 AD3d 635, 636 (1st Dep't 2012). By establishing Plaintiffs commenced this action more than the 455 days [one year plus 90 days] after July 19, 2016, Defendants satisfied their burden on motion.

The issue, then, is whether Plaintiffs are entitled to a toll which would extend the statute of limitations, and, if so, when the toll began and ended. All parties agree NY C.P.L.R. § 204 (a) tolls the statute of limitations while an application for leave to serve late notice of claim is pending. Brandi Reply aff. at ¶ 8; Hobaica aff. at ¶12. "[T]he statute of limitations is tolled during the pendency of an application to extend the time to serve a notice of claim." Dougherty v. Greene, __ AD3d __, 2018 Westlaw 2048961 (3d Dep't May 3, 2018). As stated by the Third Department: "It has now been established that CPLR 204 (a) serves to toll the running of the Statute of Limitations while a motion to file a late notice of claim is pending.'" Cody v. Village of Lake George, 177 AD2d 921, 922 (3d Dep't 1991) (quoting Giblin v. Nassau County Med. Center, 61 NY2d 67, 74 [1984]).

The Court must first determine when the toll began. Plaintiffs assert the toll commenced on January 4, 2017, when the Court signed the OSC. Hobaica aff. at ¶¶ 3, 17. Defendants assert the toll commenced January 18, 2017, when both the Town and Phippen were personally served with the signed Order to Show Cause. Brandi Third aff. at ¶ 6. The Court agrees with Defendants.

Captioned "Application for leave to serve a late notice," GML § 50-e (5), provides, in pertinent part: "Upon application the court, in its discretion, may extend the time to serve a notice of claim [ ]. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation." Id. (emphasis added). The statute further provides: "An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation." Id. (emphasis added). Titled "Application for order; when motion made", C.P.L.R. § 2211 provides:

A motion is an application for an order. A motion on notice is made when a notice of motion or an order to show cause is served.

Id. (emphasis added).

By its terms, the "application" referenced in GML § 50-e (5) is an "application for an order" [*4]under C.P.L.R. § 2211 and, therefore, is made when an order to show cause is served. Mere submission of an order to show cause or its signing by a judge is not when the application for order is "made." As stated by a leading authority: Since the order to show cause is initially submitted to the court ex-parte, one may be tempted to assume that the motion it seeks to bring on is deemed "made" at the time of its submission. It is not. The order to show cause procedure is nothing more than an alternative way of bringing on a contested motion, so that the motion is deemed "made" only when the order to show cause, signed by the judge and handed back to the applicant, is then served on the other side in accordance with the judge's prescribed method of service.Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of NY, CPLR § C2211:5 (emphases added).

"It is the time of the service of the order [to show cause] not the date the court signs it, that counts as the 'making' of a motion." Siegel, NY Prac § 248 at 479-480 (6th ed 2018). "Delivery of an order to show cause to the courthouse for signature is not the equivalent of making a motion." Voice Commc'ns, Inc. v. Bello, 12 Misc 3d 318, 320 (Sup Ct Nassau County 2006) (quoted in Practice Commentary to CPLR § 2211).

The Second Department's opinion in Cespedes v. City of New York, 172 AD2d 640 (2d Dep't 1991), is directly on point. In that case, plaintiff commenced a proceeding for leave to serve late notice of claim by order to show cause, and defendant later moved to dismiss the subsequent action as barred by the statute of limitations in GML § 50-i (1). In granting defendant's motion, the Second Department held the C.P.L.R. § 204 (a) toll commenced upon service of the order to show cause, not when it was signed:

[R]espondent commenced a proceeding [for leave to serve a late notice of claim] by order to show cause. "CPLR 2211 specifically provides that a motion brought on by [an] order to show cause is made when served and not when signed."

172 AD2d at 441 (emphasis added; citations omitted).

Accord: Ambrus v. City of New York, 87 AD3d 341, 345 (2d Dep't 2011) ("statute of limitations was tolled from [ ] when the plaintiffs served [ ] application seeking an order deeming their amended notice of claim timely filed") (emphasis added); see also, Derouen v. Savoy Park Owner, L.L.C., 109 AD3d 706, 706 (1st Dep't 2013) (motion is "made" when served, not when filed); Rivera v. Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561 (2d Dep't 2006) (same).

Having determined the toll began when the OSC was personally served on January 18, 2017, the Court next addresses when the toll ended. On this point, Plaintiffs and Defendants, again, disagree. Plaintiffs argue the toll ended February 27, 2017, when the Order was filed and entered. Hobaica aff. at ¶ 15. Defendants argue the toll ended on January 25, 2017, when the Order was signed by the Court. Brandi aff. at ¶ 7; Brandi Reply aff. at ¶ 19. The Court agrees with Plaintiffs.

In Foley v. Fitzpatrick Container Co., 267 AD2d 637 (3d Dep't 1999), the Third Department made plain "an order is effective on the date of entry thereof and not on the date a decision is signed." 267 AD2d at 628. Accord: Auclair v. Bolderson, 6 AD3d 892, 894 n 1 (3d [*5]Dep't 2004) ("order did not become effective until its [ ] entry"), lv denied, 3 NY3d 610 (2004); Low v. Peach, 179 AD2d 1094, 1094 (4th Dep't 1992) ("order did not become effective until it was entered"); see also, Yates v. Genesee County Hospice Found., 299 AD2d 900, 901 (4th Dep't 2002) (period for commencing a new action "began running upon the date on which the order dismissing those claims was entered") (emphasis added), lv denied, 99 NY2d 511 (2003); Ross v. Jamaica Hosp. Med. Ctr., 122 AD3d 607, 608 (2d Dep't 2014) (same).

Farber v. County of Hamilton, 158 AD2d 902 (3d Dep't 1990), held the toll for when an application seeking leave to serve a late notice of claim is pending lasts "until the order granting [ ] relief goes into effect," which the Third Department concluded was the day the order was "entered." 158 AD2d at 903. Likewise, in Cody, 177 AD2d at 912, the Third Department concluded the toll in effect while a motion to file a late notice of claim is pending ends the date the order granting leave to serve late notice of claim is "entered." Id.

Decisions from the First, Second and Fourth Appellate Divisions likewise conclude the toll ends on the date the order granting leave to serve late notice of claim is entered. Anhor v. City of New York, 101 AD3d 581, 582 (1st Dep't 2012) (toll ends when order granting leave to serve late notice of claim is entered); Bayne v. City of New York, 137 AD3d 428, 429 (1st Dep't 2016) (same); Yong Soo Chi v. Castelli, 112 AD3d 816, 817 (2d Dep't 2013) ("toll [lasts] from the time that [plaintiff] made his original motion for leave to serve a late notice of claim until the subsequent order was entered deciding his motion") (emphasis added); Alvarez v. New York City Hous. Auth., 97 AD3d 668, 668-69 (2d Dep't 2012) (same); Harvey v. Handelman, Witkowicz & Levitsky, LLP, 130 AD3d 1439, 1441-1442 (4th Dep't 2015) (legal malpractice action; "order [granting leave to serve late notice of claim] was effective when entered") (emphasis added).

In the case at bar, the toll was in effect for forty (40) days — from January 18, 2017 (date of personal service of OSC) to February 27, 2017 (entry date of Order granting relief). Adding this toll to the 455-day statute of limitations results in the statute of limitations expiring November 26, 2017 — 495 days after the July 19, 2016, motor vehicle accident. Although he did not commence this action until the 496th day — November 27, 2017 — George's claim is saved because November 26, 2017 was a Sunday. In pertinent part, New York Construction Law ("GCL") § 25-a provides:

When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day [ ].

Id. (emphases added).

See Cyens v. Town of Roxbury, 40 AD2d 915, 915 (3d Dep't 1972) (citing GCL §25-a; "since the period within which appellants' action [pursuant to GML § 50-i] had to be commenced expired on a Saturday, appellants had until [the following] Monday [ ] to commence their action"). Accordingly, the Court denies Defendants' motion to dismiss with respect to George's claim and cause of action.

Having found George's claim and cause of action timely, the Court next addresses Shenandoah's derivative cause of action. Shenandoah's claim and cause of action differs from George's in several key respects: (1) George's original motion by order to show cause for leave to [*6]file late notice of claim concerned him only, and did not mention Shenandoah; (2) the resulting Order concerned George only, and did mention Shenandoah or any claim which she might have; and, (3) the Notice of Claim sets forth a claim for George only. In addition, and because George was the only person granted leave to serve late notice of claim, Defendants conducted the hearing pursuant to GML § 50-h of George only, and no testimony was offered by or taken from Shenandoah. Further, although opposing Defendants' motion seeking dismissal of Shenandoah's claim, Plaintiffs have not: (1) cross-moved under GML § 50-e (5) for leave to serve a late notice of claim with respect to Shenandoah; (2) provided a proposed notice of claim including Shenandoah's claims; or, (3) cross-moved under GML § 50-e (6) to amend the original notice of claim on the ground of a "mistake, omission, irregularity or defect made in good faith in the notice [of claim]."

The Court grants Defendants' motion and dismisses Shenandoah's derivative cause of action for three reasons. First, and as noted above, "a court is without power to authorize the late filing of a claim or to order that a late filed claim be deemed timely nunc pro tunc where the statute of limitations has expired." E.g., Schwinghammer v. Sullivan W. Cent. School Dist., 2 AD3d 1126, 1126-27 (3d Dep't 2003) (citing Pierson, 56 NY2d at 954-55). The Second Department's decision in Martin v. Village of Freeport, 71 AD3d 745 (2d Dep't 2010), is instructive. In that case plaintiff, guardian of her daughter (an incapacitated person), had previously sought and obtained leave to serve a late a notice of claim, which "did not include a derivative claim." 71 AD3d at 745. After commencing suit, plaintiff sought leave to amend her complaint to include a derivative claim, but did not move either: (1) for leave to serve a late notice of the derivative claim; or, (2) to amend the original notice of claim to include a derivative claim. Denying plaintiff's motion to amend her complaint, the Second Department held "under these circumstances [ ] plaintiff was foreclosed from asserting a derivative claim against [defendant]." Id. See also: Boakye-Yiadom v. Roosevelt Union Free School Dist., 57 AD3d 929, 931 (2d Dep't 2008) ("[a] plaintiff may not maintain causes of action for which he failed to serve a timely notice of claim"). As in Martin, George's Notice of Claim — for which he received leave of court to serve, with the accompanying toll — did not include any derivative claim. Accordingly, Shenandoah is not entitled to any toll, and her cause of action is untimely.

Second, and in any event, even if the Court were to construe Plaintiffs' submissions to include a cross-motion for leave to serve a further late notice of claim, Plaintiffs do not furnish the Court with a proposed notice of claim setting forth Shenandoah's claim. This omission is fatal. General Municipal Law § 50-e (7) provides, in pertinent part, "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Id. (emphasis added). Failure to submit a proposed notice of claim with a motion or cross-motion for leave to serve a late notice of claim is "sufficient justification by itself to deny the cross-motion." Grasso v. Nassau County, 109 AD3d 579, 580 (2d Dep't 2013); accord, Matter of Farfan v. City of New York, 101 AD3d 714, 715 (2d Dep't 2012) (same). The cases cited by Plaintiffs are distinguishable, because, in each case, movants specifically moved or cross-moved to serve a late notice of derivative claim within the applicable limitations period. See Matter of Darrin v. County of Cattaraugus, 151 AD3d 1930, 1931-32 (4th Dep't 2017) [cited in Hobaica aff. at ¶ 19] (plaintiff's motion for leave to serve late notice of claim for husband's derivative claim); Matter of Cody v. Village of Lake George, 158 AD2d 888, 889 (3d Dep't [*7]1990) [cited in Hobaica aff. at ¶ 20] (same).

Finally, the Court, in its discretion, determines that the failure to include a derivative claim for Shenandoah in the Notice of Claim prejudiced Defendants since Defendants: (1) were not entitled to (and did not) conduct a GML § 50-h examination of Shenandoah when George's examination took place on April 11, 2017; and, (2) were not placed on notice that a derivative claim would be asserted until November 27, 2017 — sixteen months after the accident, and more than seven months after George's § 50-h examination. See Daprile v. Town of Copake, 155 AD3d 1405, 1406 (3d Dep't 2017) ("Supreme Court is vested with broad discretion in determining whether to permit a late notice of claim"); Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 (2016). Further, Plaintiffs offer no excuse whatsoever — let alone a reasonable excuse — for the failure to earlier assert a derivative claim. See Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 AD3d 1048, 1049 (3d Dep't 2010) (citing GML § 50-e (5); "whether petitioner offered a reasonable excuse for the delay in filing" notice of claim is factor in determining whether to permit late notice of claim); accord: Matter of Townson v. New York City Health & Hosps. Corp., 158 AD3d 401, 402 (1st Dep't 2018); Tejada v. City of New York, __ A.D. __, 2018 Westlaw 2123828 (2d Dep't May 9, 2018); Matter of Gumkowski v. Town of Tonawanda, 156 AD3d 1481, 1481 (4th Dep't 2017).

CONCLUSION

The Court denies Defendants' motion to dismiss Plaintiffs' first cause of action, and grants Defendants' motion to dismiss Shenandoah's derivative claim (second cause of action).

SO ORDERED.

DATED: June 5, 2018, at Chambers, Canton, New York.

MARY M. FARLEY, J.S.C. Footnotes

Footnote 1:The Complaint filed November 27, 2017, incorrectly identified July 18, 2016 as the date of accident.