Summary
In Conn v Tutor, the notice of claim stated that the decedent was seeking to recover damages for his "personal injuries, loss of earnings, pain and suffering and medical expenses."
Summary of this case from Guerra v. N.Y.C. Hous. Auth.Opinion
2017–09936 Index No. 11240/15
07-17-2019
Marilyn CONN, etc., Respondent, v. TUTOR PERINI CORPORATION, Defendant, Port Authority of New York and New Jersey, et al., Appellants.
Furman Kornfeld & Brennan LLP, New York, N.Y. (A. Michael Furman, Peter C. Lucas, and Nir M. Gadon of counsel), for appellants. Fortunato & Fortunato, PLLC, Brooklyn, N.Y. (Annamarie Fortunato and Louis A. Badolato of counsel), for respondent.
Furman Kornfeld & Brennan LLP, New York, N.Y. (A. Michael Furman, Peter C. Lucas, and Nir M. Gadon of counsel), for appellants.
Fortunato & Fortunato, PLLC, Brooklyn, N.Y. (Annamarie Fortunato and Louis A. Badolato of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of Marilyn Conn, as administrator of the estate of Jason Conn and individually, which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on behalf of Marilyn Conn, individually, against the defendants City of New York and Port Authority of New York and New Jersey is denied.
On December 4, 2014, Jason Conn (hereinafter the decedent) allegedly was injured while working on the excavation of a trench at John F. Kennedy International Airport. On or about February 5, 2015, the decedent served a notice of claim upon the defendant City of New York, as the owner of the property where the accident occurred, and a separate notice of claim upon the defendant Port Authority of New York and New Jersey (hereinafter the Port Authority), as the owner and/or lessee of the subject property, alleging that he was injured as a result of their common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The decedent specified in the notices of claim that he was seeking to recover damages for his "personal injuries, loss of earnings, pain and suffering and medical expenses."
In September 2015, the decedent commenced this action against the City, the Port Authority, and another defendant, alleging common-law negligence and violations of the Labor Law. The decedent died on August 7, 2016. Subsequently, the decedent's mother, Marilyn Conn (hereinafter Marilyn), as administrator of the decedent's estate and individually, moved for leave to substitute herself as the plaintiff in place of the decedent. She also moved for leave to amend the complaint to add a cause of action to recover damages for wrongful death on behalf of the decedent's estate and, in effect, a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity. The Supreme Court granted Marilyn's motion. The City and the Port Authority appeal from so much of the order as granted that branch of Marilyn's motion which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on her own behalf against them.
"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v. City of New York , 95 N.Y.2d 389, 392, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ; see General Municipal Law § 50–e ). The General Municipal Law requires that the notice of claim set forth, among other things, "the nature of the claim" ( General Municipal Law § 50–e[2] ; see Brown v. City of New York , 95 N.Y.2d at 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ). "The requirements of the statute are met when the notice describes the [incident] with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim" ( Palmer v. Society for Seamen's Children , 88 A.D.3d 970, 971, 931 N.Y.S.2d 389 ; see Vargas v. City of New York , 105 A.D.3d 834, 836, 963 N.Y.S.2d 278 ).
Similarly, a notice of claim is required to be served upon the Port Authority 60 days prior to commencing an action against it (see McKinney's Uncons Laws of N.Y. § 7107 ; Ofulue v. Port Auth. of N.Y. & N.J. , 307 A.D.2d 258, 259, 761 N.Y.S.2d 685 ; see generally Bovich v. East Meadow Pub. Lib. , 16 A.D.3d 11, 16, 789 N.Y.S.2d 511 ). A notice of claim served upon the Port Authority is required to be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth, inter alia, the nature of the claim, and the resulting damages or injuries (see McKinney's Uncons Laws of N.Y. § 7108 ; Matter of New York City Asbestos Litig. , 24 N.Y.3d 275, 279, 998 N.Y.S.2d 150, 22 N.E.3d 1018 ).
Here, the notices of claim filed against the City and the Port Authority were limited to allegations that, as a result of the accident, the decedent was caused to sustain damages related to his "personal injuries, loss of earnings, pain and suffering and medical expenses." Marilyn was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City or the Port Authority (see Gonzalez v. Povoski , 149 A.D.3d 1472, 1474, 53 N.Y.S.3d 423 ; Eboni B. v. New York City Hous. Auth. , 148 A.D.3d 486, 487, 49 N.Y.S.3d 126 ; see also e.g. Matter of Johnson v. County of Suffolk , 167 A.D.3d 742, 744, 90 N.Y.S.3d 84 ; Palacios v. Town of N. Hempstead , 165 A.D.3d 967, 969, 86 N.Y.S.3d 117 ).
Accordingly, the Supreme Court should have denied that branch of Marilyn's motion which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity, against the City and the Port Authority. Since the City and the Port Authority were not given timely notice of Marilyn's derivative claim, the court should not have allowed it to be asserted against them.
SCHEINKMAN, P.J., CHAMBERS, AUSTIN and DUFFY, JJ., concur.