Buduson v. Curtis

Kimball, J.

(dissenting). I am unable to agree with the construction placed upon section 50-e of the General Municipal Law as expressed in the majority opinion. The purpose of the statute was to effect uniformity as to the period within which a notice of claim in a tort action against a public corporation should be given. The section is general in character. It applies to all tort cases without the mention of any particular action and without the exception of any. On its face, the apparent intention was that the limitation period for giving notice of claim was to be uniform whether the action was in negligence or for some other tort. Section 50-e has nothing to do with the time when a cause of action accrues nor with the period of limitation within which any tort action must be commenced. In an action for wrongful death by an executor or administrator, by section 130 of the Decedent Estate Law, the two-year period within which to commence the action begins upon the death of the decedent. Nothing is contained in said section which has any reference to the “ notice of claim ” which is the subject of section 50-e of the General Municipal Law.

I think that there is no inconsistency between section 50-e of the General Municipal Law and section 130 of the Decedent Estate Law. One relates to “ notice of claim ” and the other relates to “ cause of action ”. “ Notice of claim ” is not synonymous with “ cause of action ”. The apparent confusion arises from failure to distinguish between the two. It was held in Matter of Mulligan v. County of Westchester (272 App. Div. 927) that the claim did not arise, in an action for wrongful death, until the appointment of an administrator. That holding was based upon the decision in Boffe v. Consolidated Tel. & Elec. Subway Co. (171 App. Div. 392, affd. 226 N. Y. 654) which held only that an action under section 130 of the Decedent Estate Law could not be commenced until the appointment of an administrator. In the Boffe case, the defendant was not a public corporation and the question of notice of claim was not even involved nor mentioned.

I think that on the death of a decedent occasioned by wrongful act, a “ claim ” arises even though the action to enforce the claim may not be brought until an administrator or executor qualifies. It is from the date of death also that the two-year period begins to run within which to bring the action and such two-year period runs whether or not a representative has been appointed. In other words, there is no extension of time to commence the action simply because there is no representative in existence. So, likewise, there is no extension of time within, which to file notice of claim even though no representative has; been appointed.

It seems plain to me that by the enactment of section 50-e of the General Municipal Law, it was the intention of the Legislature to require a notice of claim within the ninety-day period in all tort actions. Had it been intended to make an exception, that could easily have been done. The Legislature distinguished between a “ notice of claim ” and a “ cause of action ”. The; distinction between a “ claimant ” and a “ plaintiff ” was recognized in Reynolds v. Village of Nyack (258 App. Div. 667) where the court in referring to the Village Law (§§ 341, 341-c) said (p. 668): “the Legislature has been careful to distinguish between a ‘ claim ’ and a ‘ cause of action ’ ”. In Matter of Russo v. Valentine (294 N". Y. 338) the Court of Appeals distinguished the Reynolds case but the dissenting opinion cited it on the point of “ a legislative' intent to draw a distinction between claims submitted in person to the property clerk and actions and proceedings brought through the medium of a civil process in a court of law.”

If that distinction is kept in mind, the provisions of section 50-e fall into the proper places. Subdivision 1 uses the phrase “ after the claim arises.” Subdivision 5 provides for the filing in certain instances “ within a reasonable time after the expiration of the time specified in subdivision one. ’ ’ (Emphasis mine.) Subdivision 5 also provides that application for leave to file late must be within a year “ after the happening of the event upon which the claim is based ”. That “ event ” in an action pursuant to section 130 of the Decedent Estate Law can only refer to the death of the decedent. A claim is not based upon the appointment of an administrator. The ‘ ‘ basis ’ ’ of the claim', is the wrongful death. So, I think that throughout section 50-e, it is clear that the claim arises on the date of death.

Care must be taken not to confuse “ notice of intention to commence an action” with “notice of claim”. It has been held prior to the enactment of section 50-e that a notice of intention to sue must be given by one in whom the right to sue resided. The Legislature specifically abolished‘ ‘ notice of intention to commence an action.” Former authorities as to that are no longer relevant or controlling. Subdivision 2 of section 50-e does not even require that the claimant must verify the claim. It may be “ sworn to by or on behalf of the claimant ”. In a death action, the real claimants are the surviving spouse or next of kin. The administrator or executor is a mere nominal party plaintiff who may or may not have any interest in the recovery and one who may not in the true sense of the word be a “ claimant ” at all. We think the Court of Appeals in Winbush v. City of Mount Vernon (306 N. Y. 327) has determined that a distinction must be made between a “ claim ” and “ a cause of action ” and that the two are not synonymous. The opinion reads (p. 334): “ While no one except an administrator or executor may bring a death action, there is no reason, in statute or in reason, why a person, who is one of the next of kin to be benefited by a death action, may not file a notice of claim, which is not a pleading in a lawsuit, but merely a notice of injury and intention to make claim therefor.”

The purpose of requiring a notice of claim is simply to put a public corporation on notice that it may be required to respond in damages. It should have reasonable opportunity to make a prompt investigation of the circumstances. Were it to be held that the notice of claim in a death action may be filed at any time within ninety days after the appointment of an executor or administrator, then the very purpose of the notice is nullified. On the last day of the two-year period within which to commence action, an administrator could be appointed, a notice of claim filed and an action commenced. In such case, instead of a ninety-day period, there would be a two-year period subsequent to death, during which the municipality might have no knowledge of claim at all and therefore no opportunity for investigation. I think the Legislature contemplated no such result.

All concur, except Kimball, J., who dissents and votes for reversal and granting the motion, in an opinion in which Van Duser, J., concurs. Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.

Order affirmed, with $10 costs and disbursements.