Opinion
112194.
November 1, 2006.
Claimant's attorney:WILSON, BAVE, CONBOY, COZZA COUZENS, P.C., BY: WILLIAM H. BAVE, ESQ., Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL, BY: VINCENT M CASCIO, ASSISTANT ATTORNEY GENERAL, Third-party defendant's attorney.
This Claim arises from a fatal accident occurring on April 19, 2004 on the Saw Mill River Parkway in Hastings on Hudson, when allegedly a large tree adjacent to the highway fell across the road, crushing a vehicle driven by Stephen Spruck, and killing both the driver and his wife, Suzana Spruck. Their daughter, Kristina Spruck, who was six (6) months old at the time, and seated in the back seat, suffered some injuries but survived.
On or about July 16, 2004 a Notice of Intention to file a Claim was served personally upon the Office of the Attorney General, with a caption reading: James Albert Spruck and Marija Hoti Dedivanaj as Guardians of the Property of Kristina Marie Spruck, an Infant, Claimant, versus the State of New York, Defendant. [ See Affirmation in Support by William H. Bave, Jr., Exhibit 1]. The text of the Notice of Intention indicates that Mr. Spruck and Ms. Dedivanaj intend to file a Claim against the State of New York, and the nature of the Claim, including the information that "claimant's father was driving and claimant's mother was a front-seat passenger. Claimant's parents were killed in said accident. Claimant was a passenger in the vehicle and was a victim of the collision as well." [ id.]. Letters of Guardianship, dated July 1, 2004, were, it appears, attached the Notice of Intention as well. [ id.].
It is not clear whether these Letters were attached to the Notice of Intention, although they are collated with Claimant's moving papers as part of Exhibit 1.
Thereafter, and on December 30, 2004, Letters of Administration, with the usual restrictions against compromise of any action brought on behalf of the estates of the parents, were issued to Marija Hoti Deidvanaj and Theresa Ann Spruck Molnar with regard to both the estate of the mother, Suzana Spruck, and the estate of the father, Stephen Joseph Spruck. [ ibid. Exhibit 2].
The Claim herein was served on the Attorney General on March 27, 2006 and was filed in the office of the Chief Clerk of the Court of Claims on April 10, 2006. [ ibid. Exhibits 3, 4, 5]. The caption on the Claim indicates that Dedivnaja and Molnar are filing as Administratrix of the Estates of Stephen Joseph Spruck and Suzana Spruck, deceased, and Kristina Marie Spruck by her Guardians, also Molnar and Dedivanaj. [ ibid. Exhibit 5]. In its Answer, served on or about May 8, 2006, in addition to general denials, the Defendant asserted seven affirmative defenses, including jurisdictional defenses based upon the alleged failure to serve an adequate notice of intention or a Claim within ninety (90) days of the appointment of the administrator of the decedents' estates as set forth in Court of Claims Act § 10(2).
Court of Claims Act § 10(2) provides that a wrongful death Claim by an executor or the administrator of an estate against the State of New York must be served within ninety (90) days of the appointment of the executor or administrator, unless Claimant "shall within such time serve upon the attorney general a written notice of intention to file a Claim therefor, in which event the Claim shall be filed and served upon the attorney general within two years after the death of the decedent. In any event such Claim shall be filed and served upon the attorney general within two years after the death of the decedent."
The issues raised by Defendant in its motion to dismiss were, for the most part, resolved [*2]in Johnson v State of New York, 49 AD2d 136 (3rd Dept 1975), involving a Claim arising out of the death of Claimant's decedent on December 9, 1972 in a highway accident. In that case, within ninety (90) days of decedent's death, his mother filed a notice of intention to file a Claim, prior to any appointment or authority to act in a representative capacity. Thereafter, and on July 17, 1973, she was appointed adminstratrix of her son's estate, and on October 28, 1973 she served and filed a Claim for wrongful death in her representative capacity, within two (2) years of her son's death, but more than ninety (90) days after her appointment.
In reversing the Court of Claims dismissal of the Claim as not in compliance with Court of Claims Act § 10(2) in Johnson v State of New York, supra the Appellate Division focused on the multiple purposes of a Notice of Intention to File a Claim and the legislative intent in drafting the wrongful death provisions in the manner drafted. The Court said it did not "require citation of authority . . ." to state that ". . . the purpose of the requirement of filing either the Claim or a notice of intention within 90 days is to give the State prompt notice of certain particulars of the alleged occurrence. However it is apparent that the Legislature was cognizant of the fact that a wrongful death action can only be instituted by a properly appointed legal representative, and, therefore, rather than requiring filing within 90 days of decedent's death, extended the period for filing to 90 days from the appointment of such executor or administrator. It was obviously felt that a potential claimant might not act prior to formal establishment of his or her entitlement to prosecute the Claim and thus the statute does not require a filing until the expiration of 90 days from the appointment of the legal representative." Johnson v State of New York, supra at 138. The Court went on to remark that ". . . [A]s written, [the statute] does not require that one have formal status as legal representative before a notice of intention may be filed, so long as the notice is timely filed and the claim itself is ultimately timely filed by a claimant with the status of authorized legal representative. Such a requirement would not only be purposeless, but would be contrary to the legislative objective of extending the time for filing." Ibid. at 139.
Claims filed within 90 days of death, but then never served and filed within 90 days of appointment of the representative, or amended within the same time frame, have been dismissed, however. See Lichtensten v State of New York, 93 NY2d 911 (1999) affg 252 AD2d 921 (3rd Dept 1998). In Lichtenstein v State of New York, supra the widow filed a wrongful death Claim as "proposed administratrix" within three months of her husband's fatal accident of August 14, 1994. The State's Answer raised lack of capacity. Letters of administration were issued to the widow on May 15, 1995. Claimant did not ever file and serve a Claim against the state in her representative capacity thereafter. In March 1997, the State moved to dismiss the Claim — i.e.: after the statute of limitations had run — and Claimant cross-moved for nunc pro tunc relief or, alternatively, late Claim relief. In an approach later affirmed by the Court of Appeals, the Appellate Division said "[b]ecause claimant had no authority to file the verified claim against the State before being appointed the decedent's administrator, and in fact never filed and served any claim after such appointment, the Court of Claims did not err in dismissing the claim as untimely and denying her the relief afforded under CPLR 205(a) . . . ( citations omitted)." Lichtenstein v State of New York, 252 AD2d at 922. At least suggesting the possibility that a Claim served before letters were issued could be viewed as sufficient notice for notice of intention purposes, once the representative was appointed and a new Claim was not filed, nor was an amendment sought, the Appellate Division still dismissed a wrongful death Claim, noting "Even if claimant's first application was treated as a notice of intention, such notice does not hold open the court's jurisdiction beyond the two year limit for filing the claim . . . ( citations omitted)." Jones v State of New York, 69 AD2d 936 (3rd Dept 1979) affd 51 NY2d 943 (1980).
In this case, the State was put on notice of the potential Claim against it within ninety (90) days of the fatal accident, with a Notice of Intention served personally on July 16, 2004. Defendant argues that the caption of the Notice of Intention, containing no indication that anyone other than the infant Claimant may be seeking relief through her guardians, and the text of the document, do not serve the purpose of notice to the State of a potential Claim by the Estates of Stephen and Suzana Spruck.
The Court disagrees.
A Notice of Intention to File a Claim is not a pleading, and need not contain the same detail required in a pleading. It should provide enough information to show "the manner in which the claimant was injured and how the State was negligent . . . ( citations omitted), or enough information so that how the State was negligent can be reasonably inferred' . . . ( citation omitted). It must contain sufficient definiteness to enable the State to be able to investigate the Claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with [Court of Claims Act] Section 11 is what is required' . . . ( citations omitted)." Rodriguez v State of New York, 8 AD3d 647 (2nd Dept 2004).
The Notice of Intention served here contains the names of at least one of the ultimate representative Claimants — Marija Hoti Dedivnaj — albeit in her initial capacity as a guardian to the infant distributee of decedents, Kristina, and states: "The time when and the place where such claim arose and the nature of same are as follows: April 19, 2004, approximately 6:00 p.m.; Saw Mill River Parkway Hastings on Hudson, Westchester County, New York. Tree adjacent to said highway fell upon a car that claimant's father was driving and claimant's mother was a front-seat passenger. Claimant was a passenger in the vehicle and was a victim of the collision as well." [See Affirmation in Support by William H. Bave, Jr., Exhibit 1; Affirmation in Opposition by Vincent M. Cascio, Exhibit A]. While the word "estate" or the specific names of the parents are not contained on the face of the Notice of Intention, it veers upon the deliberately obtuse to say that this instrument does not alert the State of a potential wrongful death Claim against it, in addition to any survival or negligence Claim on behalf of the infant Claimant. Accordingly, the Notice of Intention served herein substantially complies with Court of Claims Act § 11(b) as to the contents of a Notice of Intention.
The Notice of Intention was also served before ninety (90) days after the appointment of the adminstratrix of the estates of Stephen and Suzana Spruck, and has sufficient detail, as stated, to perform its multiple purpose of notice to the State and extension of time within which to serve and file an actual Claim. The Claim served and filed by the estate representatives, and on Kristina's behalf by her guardians, was served within two (2) years of the parents' death as required by Court of Claims Act § 10(2), and clearly sets forth the causes of action triggered by [*4]the accident of April 19, 2004. The fact that the Claim was served in March 2006 — i.e.: more than ninety (90) days after letters were issued on December 30, 2004 — does not negate the fact that an adequately detailed Notice of Intention was timely served, and that a Claim by the estates' representatives and the infant, was timely served and filed, under the case law actually applicable to these facts.
Claimant's motion [M-72092] to dismiss the third, fourth and fifth affirmative defenses is hereby granted and Defendant's cross-motion [CM-72204] to dismiss the Claim is in all respects denied. Defendant withdrew its seventh affirmative defense premised on an alleged failure to timely file the Claim with the Clerk of the Court of Claims thus Claimant's application to dismiss that defense is denied as moot.
Appendices: