Opinion
Index No. 67063/2016
04-18-2019
DEVAN MULVANEY, as Executor of the Estate of DONALD MULVANEY, deceased, as Executor of the Estate of LEDELL MULVANEY, deceased, and as Administrator of the Estate of KATHERINE MULVANEY, deceased, Plaintiffs, v. COUNTY OF WESTCHESTRR and TOWN OF YORKTOWN, Defendants Town of Yorktown, Third-Patty Plaintiff, v. Empress Ambulance Service, Inc., Third-Patty Defendant
Unpublished Opinion
PRESENT: HON. SAM D. WALKER, J.S.C.
DECISION AND ORDER
HON. SAM D. WALKER, J.S.C.
The following papers were reviewed on the motions seeking an order dismissing the action as against Somers Fire District s/h/a Somers Volunteer Fire Department, Inc. ("Somers FD"), and Millwood Fire District s/h/a The Millwood Fire, Company Number One, Inc. ("Millwood FD"):
Notice of Motion/Affirmation/Exhibit A-C 1-5
Affirmation in Opposition 6
Reply Affirmation 7
Notice of Motion/Affirmation/Exhibits A-B 8-10
Affirmation in Opposition 11
Reply Affirmation 12
Based on the foregoing papers the motions are granted.
Factual and Procedural Background
The plaintiff commenced this action on November 14, 2016, stemming from a vehicular accident which occurred on August 15, 2015, resulting in personal injuries and the deaths of his father, mother and sister, Donald, Ledell and Katherine Mulvaney. The plaintiff alleges that the Mulvaneys' vehicle was traveling southbound on the Taconic State -Parkway, when an SUV owned and operated by Nerim Sinanovic "traveling northbound on the Taconic crashed into the center embankment, going airborne and striking the Mulvaneys' vehicle. The complaint alleges that the Millwood and Somers FD were negligent in rendering aid, extricating, and providing proper emergency treatment to the decedents.
Prior to the commencement, the plaintiff served the defendants County of Westchester (the "County") and Town of Yorktown (the "Town;) with Notices of Claim, pursuant to New York General Municipal Law § 50-e. Town of Yorktown (the "Town") filed a third-patty summons and complaint on November 17, 2017, against Empress Ambulance Service, Inc.
Somers FD and Millwood FD now file the instant motions seeking dismissal of the action against them. They argue that the complaint should be dismissed due to failure to comply with General Municipal Law § 50-e and General Municipal Law § 50-i; and failure to comply with the statute of limitations required to bring a wrongful death claim. Somers FD also argues for dismissal due to failure to state a cause of action and based on documentary evidence.
The plaintiffs attorney filed an affirmation in opposition, arguing that Somers and Millwood FD failed to meet their burden and the requirements of demonstrating that they are entitled to judgment as a matter of law and are not entitled to summary judgment. The attorney further argues that the motion is premature and that even if the wrongful death cause of action is untimely, a cause of action exists for conscious pain and suffering, for which the statute of limitations has not expired.
DISCUSSION
General Municipal Law s50-e provides that in order to commence an action against a municipality/pbblic corporation the claimant must serve a notice of claim upon the entity within 90 days from the date the claim arises. The purpose of this statute is to protect the public corporation against "stale or unwarranted claims" and afford the municipality 'adequate opportunity to investigate the circumstances surrounding the accident," while the information is likely to be available, (see Altmayer v City of New York, 149 A.D.2d 638 [2d Dept 1998]; see also Walston v City of New York, 229 A.D.2d 485 [2d Dept 1996]).
General Municipal Law § 50-e tolls the service of a notice of claim in wrongful death actions to 90 days after the appointment of a representative of the decedent's estate (see General Municipal Law § 50-e[1][a).
Further General Municipal Law § 50-i states, in pertinent part, that "[n]o action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property of such city, county, town, village, fire district or school district...unless a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this article" (see General Municipal Law §50-i[1])
Somers FD and Millwood FD are municipal entities and therefore, are required to be served with a notice of claim pursuant to General Municipal Law § 50-e and 50-I. Katherine and Ledell Mulvaney died on August 15, 2015 and Donal Mulvaney died on September 15, 2015. The Letters of Testamentary were issued on April 5, 2016. Both Somers FD and Millwood FD aver that to date, the plaintiff has not filed a notice of claim with either fire district and the time to do so has expired. The plaintiff has not rebutted this assertion, nor has he filed for permission to file a late notice of claim. The plaintiff's attorney used an incorrect standard of law in opposing the motion, arguing for a denial of summary judgment, while the plaintiff filed a motion to dismiss for failure to comply with a condition precedent, expiration of the statute of limitations and failure to state a cause of action.
In the interest of judicial economy, since the Court is dismissing the case based on the failure to file a notice of claim, it will not address the bases for dismissal raised by the defendants.
Accordingly, based on the foregoing, it is
ORDERED that the motions to dismiss are granted and it is further
ORDERED that the action against Somers Fire District s/h/a Somers Volunteer Fire Department, is dismissed; and it is further
ORDERED that the action against Millwood Fire District s/h/a The Millwood Fire Company Number One, Inc., is dismissed.
The foregoing shall constitute the decision and order of the Court.