Opinion
Index No. 704841/2021
11-05-2021
Zhiping XIAO, as Proposed Administratrix of the Estate of Cun Fang Liu, and Zhiping Xiao, Individually, Petitioner, v. The CITY OF NEW YORK, New York City Transit Authority, Metropolitan Transportation Authority, and MTA Bus Company, Respondents.
Plaintiff's attorney is James Napoli, Esq., of Caesar and Napoli, PC, and Defendant's attorney is Paulita Girvan, Esq. of Corporation Counsel.
Plaintiff's attorney is James Napoli, Esq., of Caesar and Napoli, PC, and
Defendant's attorney is Paulita Girvan, Esq. of Corporation Counsel.
Tracy Catapano-Fox, J.
After oral argument, it is ordered that this application is determined as follows:
Petitioner's motion to amend her Notice of Claim and deem the Amended Notice of Claim filed nunc pro tunc pursuant to General Municipal Law § 50-e(6) is granted as to adding Zhiping Xiao as the administratrix of the Estate of Cun Fang Liu and adding claims for wrongful death and conscious pain and suffering but denied as to adding a claim for Zhiping Xiao individually and for medical expenses. Petitioner served a Notice of Claim upon respondents on March 6, 2020 for personal injuries sustained by deceased Cun Fang Liu on December 25, 2019 when she was a passenger on respondents’ bus that was involved in a motor vehicle accident with another vehicle. Subsequent to the filing of the Notice of Claim, petitioner Cun Fang Liu died by suicide on June 20, 2020, and petitioner was appointed as administratrix of deceased Liu's estate.
Petitioner's application to amend the Notice of Claim to reflect her status as administratrix of the estate of Cun Fang Liu pursuant to General Municipal Law § 50-e(6) is granted. (See Rosenblatt v. NY City Health & Hosps. Corp. , 149 A.D.3d 961, 53 N.Y.S.3d 119 [2d Dept. 2017].) Petitioner presented the limited letters of administration and Certificate of Appointment from Queens County Surrogate Peter Kelly, dated May 20, 2021, appointing Zhiping Xiao as fiduciary over decedent Liu's estate. Respondents’ argument that the documents are inadmissible because they do not have a raised seal is without merit, as the Court recognized the documents are filed within the Queens County Surrogate's Court and e-filed as per the court rules. Therefore, as respondents failed to present sufficient opposition, petitioner's application to amend the Notice of Claim to reflect her status as administratrix of the estate of Cun Fang Liu pursuant to General Municipal Law § 50-e(6) is granted.
Petitioner also seeks to amend the Notice of Claim to add two new claims: wrongful death and conscious pain and suffering claims on behalf of deceased Cun Fang Liu, and a claim for loss of services/companionship by petitioner. Petitioner argues that the wrongful death claim and conscious pain and suffering should be permitted because they are made in good faith and derivative of the claims asserted in the original Notice of Claim. Petitioner further argues that she could not have included the wrongful death claim in the original Notice of Claim, as Cun Fang Liu did not die until three months after the Notice of Claim was filed, and therefore the amendment is sought in good faith. Petitioner argues that the wrongful death claim is meritorious, as Cun Fang Liu committed suicide due to the severe injuries sustained as a result of respondents’ negligence in the motor vehicle accident, and respondents cannot demonstrate any prejudice by the amendment. Finally, petitioner argues that as administratrix of deceased Liu's estate, she should be permitted to amend the Notice of Claim to add her derivative claims.
Respondents oppose petitioner's amendments, arguing that petitioner is seeking to add new substantive claims unrelated to the original Notice of Claim. They argue that deceased Liu's suicide is too attenuated from the personal injuries claims allegedly caused by the motor vehicle accident and is not made in good faith. They further argue that they are severely prejudiced by the amendment, as they cannot investigate and obtain sufficient discovery to defend themselves against these new claims. Respondents argue that the conscious pain and suffering claim and petitioner's claims for loss of services/companionship are untimely and should have been included within the original Notice of Claim.
Petitioner's application presents a case of first impression, as there is no case law in New York that addresses whether a Notice of Claim can be amended under General Municipal Law § 50-e(6) to add a wrongful death claim for suicide, after a timely Notice of Claim was filed for personal injuries in a motor vehicle accident. Therefore, in considering petitioner's application, the Court must consider the plain language of the statute and the purpose of enacting General Municipal Law § 50-e(6).
In order to commence a tort action against a municipality, a claimant must serve a Notice of Claim within ninety days of the alleged injury. ( Catterson v. Suffolk County Dept. of Health Servs. , 49 A.D.3d 792, 793, 854 N.Y.S.2d 205 [2d Dept. 2008].) The purpose of the Notice of Claim is to enable authorities to investigate, collect evidence and evaluate the merits of the claim. ( Congero v. City of Glen Cove , 193 A.D.3d 679, 680, 141 N.Y.S.3d 909 [2d Dept. 2021].) A Notice of Claim may be amended to reflect good faith and nonprejudicial technical mistakes, omissions or defects that do not substantively change the nature of the claim or plaintiff's theory of liability. ( Castillo v. Kings County Hosp. Ctr. , 149 A.D.3d 896, 52 N.Y.S.3d 451 [2nd Dept. 2017].) However, amendments of a substantive nature are not permissible under General Municipal Law § 50-e(6). ( Ruggiero v. Suffolk County Police Dep't , 7 A.D.3d 605, 605, 775 N.Y.S.2d 904 [2d Dept. 2004].)
The case law is clear that amendments to a Notice of Claim under General Municipal Law § 50-e(6) cannot be permitted if they substantially change the nature of the claim or theory of liability. Based upon the papers submitted and the parties’ oral argument, it is undisputed that petitioner is not seeking to substantially change the theory of liability, so the only issue is whether petitioner is seeking to substantially change the nature of the claim.
Petitioner's application to amend the Notice of Claim to add a wrongful death and conscious pain and suffering claim on behalf of decedent Liu is granted. (See Santarpia v. City of New York , 231 A.D.2d 726, 647 N.Y.S.2d 861 [2d Dept. 1996].) Petitioner established that she served a timely Notice of Claim, and the wrongful death and conscious pain and suffering claims are derivative of the personal injury damages presented in the original Notice of Claim. She established that the original Notice of Claim specified personal injuries, pain and suffering, and therefore the suicide and conscious pain and suffering were consequential damages related to those already pled. Petitioner further established that there is no prejudice to respondents, as they can depose petitioner with regard to deceased Liu's claims and obtain medical documentation with regard to the claims.
Respondents failed to sufficiently oppose petitioner's application to add the wrongful death and conscious pain and suffering claims. While respondents argue that the two claims are materially distinct, they failed to present any evidence that the conscious pain and suffering is not derivative of the pain and suffering and personal injury claims already pled in the Notice of Claim.
Respondents also argue that petitioner's original Notice of Claim alleged three specific injuries, a fractured coccyx, a cut to lips, and broken teeth that were too attenuated from the claim of suicide so the wrongful death claim is a newly alleged theory and not derivative. This argument is without merit, as the suicide is an alleged damage that directly relates to deceased Liu's other alleged personal injuries. Respondents’ main argument is that deceased Liu's suicide could not be causally related to the motor vehicle accident because a suicide involves mental rather than physical injuries, and argues it is illogical to find that Liu committed suicide because of the motor vehicle accident. While this argument may prove successful after discovery is completed, at this early pre-discovery stage, and in light of the case law that permits amendments that are derivative in nature, it cannot be said that deceased Liu's suicide was not in conjunction with or caused by the personal injuries sustained in the motor vehicle accident. (See Betette v. County of Monroe , 82 A.D.3d 1708, 920 N.Y.S.2d 512 [4th Dept. 2011].) Further, any prejudice to respondents can be alleviated by obtaining deceased Liu's medical records from the time of the motor vehicle accident until her death. Since deceased Liu never appeared for a 50-h hearing, it cannot be said that respondents were prevented from seeking discovery on the wrongful death claim any more than they were unable to question deceased Liu about the personal injuries sustained. Further, petitioner has appeared for a 50-h hearing, and can provide further information necessary for respondents to investigate the wrongful death and conscious pain and suffering claims to alleviate any prejudice.
Petitioner's reliance on Ramos v. New York City Tr. Auth. , 60 A.D.3d 517, 876 N.Y.S.2d 13 (1st Dept. 2009) is supported by the similar facts in the present case. In Ramos , the petitioner was 66 years old and in a wheelchair when she was injured on July 28,2004, by the negligence of respondent bus driver. Petitioner later died on January 5, 2005, months after petitioner filed the Notice of Claim on September 10, 2004. As in the present case, petitioner sought to add claims for wrongful death and conscious pain and suffering, arguing the claims were derivative of those in the original Notice of Claim. The First Department in Ramos reversed the lower court's denial of petitioner's application, finding that the wrongful death allegations result from the same facts as alleged in the Notice of Claim for personal injuries, and there is no evidence of prejudice to respondent. The Ramos facts are consistent with those in the present action, and therefore, contrary to respondents’ argument, petitioner's claims are supported by the Ramos decision. However, petitioner's application to add claims for medical expenses, fear of impending suicide and psychological injuries is denied, as is the application for derivative claims for loss of services/companionship on behalf of Zhiping Xiao, as these claims are new, substantive changes to the theory of liability, and not derivative of deceased Liu's claims. (See Kraja v. New York City Tr. Auth. , 57 A.D.3d 854, 871 N.Y.S.2d 226 [2d Dept. 2008].) Petitioner's individuals claims existed during the ninety days after the motor vehicle accident, and therefore could have been included in a timely Notice of Claim, unlike the wrongful death claim which did not arise until June 2020. As petitioner failed to present good cause for the delay in presenting the claims within the original Notice of Claim, petitioner's application to add derivative claims on Xiao's behalf is denied. (See C.D. v. Goshen Cent. Sch. Dist. , 186 A.D.3d 1316, 131 N.Y.S.3d 40 [2d Dept. 2020].)
Accordingly, petitioner's application to amend the Notice of Claim pursuant to General Municipal Law § 50-e(6) is granted nunc pro tunc , solely to the extent that petitioner may amend the Notice of Claim to include petitioner as administratrix of the estate of Cun Fang Liu and add claims for wrongful death and conscious pain and suffering. Petitioner's application is denied as to adding a claim for Zhiping Xiao individually and for medical expenses. Petitioner must e-file the amended Notice of Claim within thirty (30) days from the date of this Order with Notice of Entry and said Notice of Claim is deemed filed nunc pro tunc as of the filing upon respondents. The remaining claims are denied as not supported by sufficient evidence. This constitutes the decision and Order of the Court.