Mulvaney v County of Westchester

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Mulvaney v County of Westchester 2019 NY Slip Op 34793(U) April 18, 2019 Supreme Court, Westchester County Docket Number: Index No. 67063/2016 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 04/22/2019 11:27 AM NYSCEF DOC. NO. 128 INDEX NO. 67063/2016 RECEIVED NYSCEF: 04/18/2019 To commence the the statutory To commence statutory time for appeals appeals as as of of right time for right (CPLR you are are (CPLR 5513[a]), 5513[aJ), you advised to serve a copy of this order, with with notice of this order, notice of upon all parties. parties. of entry, entry, upon " SUPREME COURT THE STATE SUPREME COURT OF THE STATE OF NEw;ivoRK NEW;iYORK WESTCHESTER COUNTY :, -WESTCHESTER COUNTY :. PRESENT: HON. HON. SAM D. WALKER, WALKER, J.S,C. PRESENT: J.S;C. ---------------------------------------------------------------------x ------------------------------------------------------------------------------x DEVAN MULVANEY, MULVANEY, as Executor Executor of of the Estate Estate of of DEVAN DONALD MULVANEY, MULVANEY, deceased, deceased, as Executor Executor of of DONALD the Estate the Estate of of LEDELL LEDELL MULVANEY, MULVANEY, deceased, deceased, Estate of of and as Administrator Administrator of the the Estate KATHERINE KATHERINE MULVANEY, MULVANEY, deceased, deceased, DECISION DECISION AND AND ORDER ORDER Index No: 67063/2016 Index 67063/2016 Se9# se~# 6 & 7 Plaintiffs, Plaintiffs, -against-againstCOUNTY OF WESTCHESTER WESTCHESTER and COUNTY TOWN OF YORKTOWN, TOWN YORKTOWN, Defendants Defendants ------------------------------------------------------------------------x ------------------------------------------------------------------------------x Town of Yorktown, Yorktown, Town Third-Party Third-Party Plaintiff, Plaintiff, -against-against- Empress Empress Ambulance Ambulance Service, Service, Inc., Third-Party Defendant Defendant Third-Party ---------------------------------------------------------------------x ------------------------------------------------------------------------------x The following papers were reviewed dismissing the The following papers were reviewed on the motions motions seeking seeking an order order dismissing action as against against Somers Somers Fire District District s/h/a Somers Somers Volunteer Volunteer Fire Department, Department, Inc. action ("Somers FD"), and Millwood Millwood Fire District District s/h/a s/h/a The The Millwood Millwood Fire: Fire,'Company Number One, ("Somers Company Number .' ("Millwood FD"): Inc. ("Millwood 1-5 Notice of Motion/Affirmation/Exhibit Motion/Affirmation/Exhibit A-C Notice Affirmation Affirmation in Opposition Opposition Reply Affirmation Reply Affirmation Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-B Notice A-B Affirmation Opposition Affirmation in Opposition Reply Affirmation Reply Affirmation [* 1] .,' 1 of 5 6 7 8-10 8-10 11 11 12· 12 FILED: WESTCHESTER COUNTY CLERK 04/22/2019 11:27 AM NYSCEF DOC. NO. 128 INDEX NO. 67063/2016 RECEIVED NYSCEF: 04/18/2019 ·! Based the foregoing foregoing papers granted. Based on the papers the motions motions are granted. Factual Factual and Procedural Procedural Background Background The plaintiff commenced commenced this action action on November November 14, 14,2016, stemming from _2016, stemming from a The plaintiff vehicular accident 2015, resulting resulting in personal personal injuries injuries and vehicular accident which which occurred occurred on August August 15, 2015, :, ' the deaths of his father, father, mother mother and sister, Donald, Ledell Ledell and Katherine Katherine Mulvaney. Mulvaney. The sister, Donald, deaths of plaintiff alleges that the Mulvaneys' vehicle was was traveling southbound on the Taconic T aconic State plaintiff alleges that the Mulvaneys' vehicle traveling southbound State Parkway, when SUV owned Nerim Sinanovic'traveling Sinanovic'traveling northbound northbound on Parkway, when an SUV owned and operated operated by Nerim Taconic center embankment, embankment, going airborne and striking the Ta conic crashed crashed into the center going airborne striking the Mulvaneys' vehicle. vehicle. The The complaint complaint alleges the Millwood Millwood and Somers Somers FD were were alleges that that the Mulvaneys' negligent in rendering rendering aid, extricating, extricating, and providing providing proper proper emergency treatment to the emergency treatment negligent decedents. decedents. Prior to the commencement, the plaintiff plaintiff served County of Prior the commencement, served the defendants defendants County Westchester (the "County") Town of Yorktown Yorktown (the "Town'.') of Claim, Westchester "County") and Town "Town:') with Notices Notices of Claim, Yorktown (the 'Town") pursuant York General pursuant to New New York General Municipal Municipal Law§ Law S 50-e. Town Town of Yorktown "Town") filed a third-party third-party summons November 17, 2017, EmpressAmbulance summons and complaint complaint on November 2017, against agai~st Empress Ambulance Service, Inc. Service, Somers FD and Millwood Millwood FD now now file the instant instant motions motions seeking dismissal of the Somers seeking dismissal action against against them. them. They They argue argue that that the complaint should due to failure failure to action the complaint should be dismissed dismissed due comply with General General Municipal Municipal Law§ Law S 50-e 50-e and General General Municipal Municipal Law§ Law S 50-i; and failure failure comply comply with the the statute statute of limitations required required to bring bring a wrongful wrongful death claim. Somers Somers to comply of limitations death claim. also argues argues for for dismissal failure to state of action action and based based on FD also dismissal due due to failure state a cause cause of documentary evidence. documentary evidence. 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 04/22/2019 11:27 AM NYSCEF DOC. NO. 128 INDEX NO. 67063/2016 RECEIVED NYSCEF: 04/18/2019 The plaintiffs filed an affirmation arguing that The plaintiffs attorney attorney filed affirmation in opposition, opposition, arguing that Somers Somers and Millwood FD failed meet their their burden burden and the requirements requirements of demonstrating they Millwood failed to meet demonstrating that that they are entitled entitled to judgment matter of of law and are not entitled entitled to summary summary judgment. judgment. The The judgment as a matter attorney further further argues argues that that the motion motion is premature premature and that that even even if the wrongful death death attorney the wrongful suffering, for cause cause of action action is untimely, untimely, a cause cause of action action exists exists for for conscious conscious pain and suffering, for which the statute of limitations expired. which statute of limitations has not expired. DISCUSSION DISCUSSION General General Municipal Municipal Law Law §50-e s50-e provides provides that that in order ordertoto commence commence an action action against against municipality/public corporation corporation the claimant claimant must must serve notice of claim claim upon upon the the entity entity a municipality/public serve a notice of this within within 90 days days from from the the date date the claim claim arises. arises. The The purpose purpose of this statute statute is to protect protect the public corporation corporation against against "stale "stale or unwarranted unwarranted claims" claims" and afford afford the municipality public the municipality 'adequate opportunity opportunity to investigate investigate the circumstances circumstances surrounding accident," while 'adequate surrounding the the accident," while the information is likely likely to be available, available, (see (see Altmayer City of of New New York, 149 AD2d 638 [2d Altmayer v City AD2d 638 information Dept 1998]; 1998]; see also also Walston Walston v City City of of New New York, 229 229 AD2d Dept 1996]). 1996]). Dept AD2d 485 485 [2d Dept General Municipal Municipal Law§ Law S 50-e 50-e tolls service of a notice notice of claim in wrongful General tolls the service of claim wrongful death death actions days after after the appointment appointment of a representative representative of decedent's estate of the decedent's estate (see actions to 90 days General Municipal Municipal Law § S 50-e[1 50-e[1][a]). General ][a]). Further General General Municipal Municipal Law§ Law S 50-i states, pertinent part, that "[n]o action action or states, in pertinent that "[n]o Further special proceeding proceeding shall prosecuted or maintained maintained against against a city, county, county, town, village, special shall be prosecuted town, village, fire district district or school district for personal injury, wrongful damage to real or school district for personal wrongful death death or damage personal property property of county, town, of such such city, county, town, village, village, fire district district or school school district. district. ....unless unless personal [* 3] 3 of 5 notice of claim claim shall have been been made made and served served upon upon the the city, county, county, town, village, fire a notice shall have town, village, FILED: WESTCHESTER COUNTY CLERK 04/22/2019 11:27 AM NYSCEF DOC. NO. 128 INDEX NO. 67063/2016 RECEIVED NYSCEF: 04/18/2019 district or school school district district in compliance compliance with section section fifty-e fifty-e of of this article" article" {see (see General General district Municipal Municipal Law§ Law S 50-i[1]) 50-i[1]) Somers FD and Millwood Millwood FD are municipal municipal entities entities and therefore, therefore, are required required to Somers served with a notice notice of of claim claim pursuant pursuant to General General Municipal Municipal Law § S 50-e 50-e and 50-1. 50-I. be served Katherine and Ledell Ledell Mulvaney Mulvaney died died on August August 15, 2015 2015 and Donal Donal Mulvaney Mulvaney died died on Katherine September 15, 2015. 2015. The The Letters Letters of 1estamentary jestamentary were issued issued on April April 5, 2016. 2016. Both September were Somers FD and Millwood Millwood FD FD aver aver that that to date, date, the the plaintiff plaintiff has ~ot not filed filed a notice notice of of claim claim Somers with either either fire district district and the time time to do so has expired. expired. The The plaintiff plaintiff has not rebutted rebutted this assertion, nor nor has he filed filed for for permission permission to file file a late notice notice of of claim. claim. The The plaintiff's plaintiff's assertion, attorney used an incorrect incorrect standard standard of of law in opposing opposing the the motio~. motion, arguing arguing for for a denial denial of of attorney summary judgment, while the plaintiff plaintiff filed a motion motion to dismiss dismiss for for failure failure to comply comply with with a summary judgment, while condition precedent, precedent, expiration expiration of the statute statute of of limitations limitations and failure failure to state state a cause cause of condition , action action'.1. ' Accordingly, based based on the the foregoing, foregoing, it is Accordingly, ORDERED that that the the motions motions to dismiss dismiss are granted granted and it is further further ORDERED ORDERED that that the action action against against Somers Somers Fire District District s/h/a s/h/a Somers Somers Volunteer Volunteer Fire ORDERED Department, is dismissed; dismissed; and it is further further Department, ORDERED that that the action action against against Millwood Millwood Fire District District !3/h/a s/h/a The The Millwood Millwood Fire ORDERED Company Number Number One, One, Inc., is dismissed. dismissed. Company " ln the interest judicial economy, interest of judicial economy, since since the Court Court is dismiissing dismissing the case case based based on failure to file a notice notice of of claim, claim, it will not address address the bases bases for for dismissal dismissal raised raised by the the failure defendants. defendants. 1'In 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 04/22/2019 11:27 AM NYSCEF DOC. NO. 128 INDEX NO. 67063/2016 RECEIVED NYSCEF: 04/18/2019 The foregoing constitute the decision decision and order Court. The foregoing shall shall constitute order of of the the Court. Dated: White Plains, New New York York Dated: White Plains, Aprill~, 2019 April \i, 2019 C luLJ.~ rluc~.~ WALKER, J.S.C. J.S.C. ON. SAM SAM D. WALKER, f 5 [* 5] 5 of 5

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