Opinion
25146/03.
Decided July 26, 2004.
Liza A. Milgrim, BISOGNO MEYERSON, Brooklyn, NY, Plaintiff.
Ann Gangi, THE LAW OFFICE OF KATHLEEN M. SWEENEY, New York, New York, Defendant.
Defendant Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC), moves pursuant to CPLR § 3211(a)(5) for an order dismissing the personal injury claim of plaintiff Zaida Salas on the grounds that the applicable statute of limitations has expired prior to commencement of the action.
On Saturday, June 3, 2000, at approximately 5:30 P.M., plaintiff was walking eastbound attempting to cross 4th Avenue via 8th street in Brooklyn. At that time, a white four-door sedan, attempting a southbound turn onto 4th Avenue, allegedly struck and injured her. The driver fled the scene and was never identified. New York City Police Officer Werle of the 78th precinct responded to the scene, interviewed the plaintiff and completed a Police Accident Report. On August 23, 2000, plaintiff mailed the defendant an affidavit giving notice of her intention to make a claim against MVAIC for injuries attributable to the accident.
The following facts are undisputed. On May 9, 2003, plaintiff filed an Order to Show Cause (OTSC), a Petition, and a Request for Judicial Intervention with the Kings County Clerk requesting permission to sue MVAIC pursuant to Insurance Law § 5218. On May 30, 2003, plaintiff inquired at the Kings County Clerk's Office regarding the status of the OTSC and was advised to supplement the submission with an emergency affirmation. Plaintiff did so the same day. On May 30, 2003, Justice Marsha L. Steinhardt signed the Order and made it returnable June 19, 2003 in Part 26 of the Kings County Supreme Court.
On June 19, 2003, Justice Barasch heard the application and issued an order permitting plaintiff to commence an action against MVAIC on default. On July 30, 2003, Justice Barasch's Order was entered in the Kings County Clerk's Office. On July 9, 2003, plaintiff purchased an index number and filed a summons and complaint with the Kings County Clerk.
On July 28, 2003, plaintiff served the defendant with the summons and complaint.
Resolution of the issue requires review of the applicable statute of limitation, the applicable tolling provisions, the method of commencing the actions, and the proper computation of all these interrelated factors.
In 1992, the method of commencing an action in New York Supreme and County Courts was changed by the Legislature from a commencement-by-service to a commencement-by-filing system making the payment of a filing fee and filing of the initiatory papers the acts that commence an action. (Gershel v. Porr, 89 N.Y.2d 327).
Insurance Law § 5201(b)(2) provides that the purpose of MVAIC is to provide innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, through no fault of their own, by unidentified motor vehicles which leave the scene of the accident.
Insurance Law § 5218(a) sets forth the procedure for commencing an action against MVAIC in hit and run cases:
Any qualified person having a cause of action for death or personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was at the time of the accident, in the possession of a person without the owner's consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.
Generally, the statute of limitations begins to run the day after a cause of action accrues (Gen. Constr. L. § 20). A personal injury cause of action based on negligence accrues when an injury is sustained (Vigilant Ins. Co. of America v. Housing Authority of City of El Paso 87 NY2 36, 44 [1995]; see also Commissioners of State Insurance Fund v. Photocircuits Corp. 2 Misc.3d 300 [NY Sup. 2003]). If the day the statute of limitations is set to expire is a Saturday, Sunday, or public holiday, the last day to commence the action becomes the next succeeding business day (Gen. Constr. L. § 25-a). Pursuant to CPLR § 214(5) the applicable statute of limitations on a personal injury based on negligence such as the one the plaintiff sustained is three (3) years. Plaintiff's injuries were sustained on June 3, 2000 and therefore the statute of limitations would have expired on Tuesday, June 3, 2003.
While the court is considering a request made pursuant to Insurance Law § 5218 for leave to sue MVAIC, the statute of limitations, if not already expired, is tolled from the commencement of the action until entry of the order granting the relief ( Trepel v. Motor Vehicle Accident Indemnification Corporation, 267 A.D.2d 228 [2d Dept. 1999]). In Trepel, the court cited Matter of Betances v. MVAIC, 210 AD2d 475 for the proposition that the toll on the running of the prescriptive period is in effect during the pendency of the application pursuant to Insurance Law § 5218 because, during this period, the plaintiff has no right to sue. The court also specifically included within the tolling period the time from the signing of the order and the date of entry of the order reasoning that the request for leave to sue is not finally determined until entry of the order ( Trepel v. Motor Vehicle Accident Indemnification Corporation, supra., 267 A.D.2d at 229).
The plaintiff's request for leave to sue MVAIC was instituted by filing an OTSC and Petition which, pursuant to CPLR § 304, is the method of commencing a special proceeding.
While Insurance Law § 5218 mandates the obtaining of court permission to commence an action against MVAIC in hit and run cases, it neither specifies the type of action the petitioner must use nor defines the action as a special proceeding.
Plaintiff commenced the matter by a special proceeding. However, this choice would have no adverse consequences in light of the ameliorative effect of the amendment to CPLR § 103(c), effective January 1, 2003.
CPLR § 103(c) provides in pertinent part:
If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution. If the court finds it appropriate in the interests of justice, it may convert a motion into a special proceeding, or vice-versa, upon such terms as may be just, including the payment of fees and costs.
Furthermore, inasmuch as the defendant did not contest this method of commencement, the court has the ability to proceed and apply the procedure governing special proceedings. A request for leave to sue MVAIC is similar to a request for leave to file a late notice of claim. The latter was treated as a special proceeding without it being statutorily defined as such in Billone v. Town of Huntington, 188 A.D. 2d 526 (2d Dept 1992).
Effective November 21, 2001, the Legislature amended CPLR §§ 304, 306-a, and 306-b to the effect that the filing of the petition alone will now be deemed the proper commencement of the proceeding Laws of 2001 Chapter 473. Prior to that amendment, CPLR § 304 required that a plaintiff file a petition and either an order to show cause or a notice of petition to commence a special proceeding. CPLR § 403 defined what these initial filing papers must contain and the time frame in which they must be served. Decisional case law clarified that the order to show cause needed to be signed by a judge in order to constitute commencement of the special proceeding (Fry v. Village of Tarrytown, 89 N.Y.2d 714).
Effective with the amendment to CPLR § 304, commencement of a special proceeding for statute of limitations purposes occurs with the filing of the petition alone. The Legislative intent of interposing the statute of limitations with the commencement of an action, which includes a special proceeding pursuant to CPLR § 105(b), was effected in Chapter 334 of the Laws of 2002 by amending CPLR § 203(c) to state that the filing of the petition alone would toll the statute of limitations.
In the case at bar, plaintiff successfully commenced the proceeding on May 9, 2003 by the filing of the petition requesting leave to sue MVAIC. The statute of limitations was tolled from May 9, 2003 until June 30, 2003, the date of entry of Justice Barasch's Order which granted plaintiff's request.
The Appellate Division First Department in Vasquez v. MVAIC 272 AD 2d 275 cited Trepel and unequivocally set forth the methodology for computing the expiration of the statute of limitation in the situation where petitioner seeks and obtains leave to sue MVAIC. The court counted the number of days between the commencement of the action for leave to sue MVAIC and the date the statute of limitations would have expired had that request not been made. The statute of limitations would expire that same number of days after the date of entry of the order granting the relief ( Vasquez v. MVAIC, 272 AD 2d 275 [1st Dept. 2000]).
In the case at bar, there were 25 days between May 9, 2003, the commencement of the proceeding for leave to sue MVAIC, and June 3, 2003, the date the statute of limitations would have expired. Because the Order granting leave to sue MVAIC was entered on June 30, 2003, the plaintiff had until July 25, 2003, 25 days after June 30, 2003, to commence an action against MVAIC.
The plaintiff filed a summons and complaint on July 9, 2003 which commenced the action pursuant to CPLR § 304 for statute of limitations purposes. It is undisputed that service was properly made on the defendant. Therefore, commencement of the action was well within the statute of limitations and the defendant's motion to dismiss pursuant to CPLR § 3211(a)(5) is denied.
The foregoing constitutes the decision and order of this court.