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Court Rules on Complex Wrongful Death Matter

This case involves a decedent who lived with her two young sisters and their mother. The decedent’s biological father, a convicted felon, had abandoned her. In early 2004, the boyfriend of the decedent’s mother, moved in with the family. In May and again in August 2004, the decedent was taken to health care facilities for treatment of various injuries, including a broken bone and head trauma. According to plaintiff, these instances of suspected abuse were reported to defendants County of Greene, County of Greene Mental Health, County of Greene Department of Social Services and/or County of Greene Child Protective Services (collectively, the County defendants).

According to a New York Injury Lawyer, following the August incident, the mother’s boyfriend was apparently ordered to leave the family home. However, on 21 November 2004, the decedent died tragically as a result of injuries intentionally inflicted upon her by the mother’s boyfriend. At about two weeks later, the mother and the mother’s boyfriend each charged in connection with Egypt’s death. An action for wrongful death and personal injury were filed. Damages recovered would ultimately benefit the siblings as sole distributees by intestacy. The decedent’s mother pleaded guilty to criminally negligent homicide and was subsequently sentenced to a prison term of 1 1/3 to 4 years. The mother’s boyfriend, following a jury trial, was convicted of second-degree murder and sentenced to a term of 25 years to life imprisonment.

Shortly after the decedent’s death in December 2004, plaintiff was appointed as the attorney for the decedent’s sisters, in connection with an abuse and neglect proceeding pending in Family Court against their mother and their mother’s boyfriend, and the administrator of the decedent’s estate in October 2006.

Initially, the court determined that the wrongful death claim was timely because the notice of claim was filed within 90 days from plaintiff’s appointment as administrator and the action was commenced within two years from the time of the decedent’s death, as required by statute. Turning to the personal injury cause of action, the court found that the notice of claim was untimely because it was not filed within 90 days after the claim arose. Recognizing that it lacked the discretion to extend the time beyond the expiration of the applicable one–year–and–90–day limitations period, the court relied on a prior decision to conclude that the toll afforded by CPLR 208 applied, based on the infancy of the decedent’s siblings, and, as a result, the statute of limitations did not begin to run until plaintiff’s appointment as administrator in October 2006. In a landmark case, the Court held that the CPLR 208 infancy toll applies when an infant is the sole distributee in a wrongful death action. The court subsequently granted plaintiff leave to file the late notice of claim.

A Nassau County Personal Injury Lawyer said that this is referred to as the “survival statute,” provides that “[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent.” 4 As a condition precedent to initiating a personal injury action against a municipality, a notice of claim must be served within 90 days after the claim arises. The action must also be commenced within the statutorily prescribed one–year–and–90–day limitations period. Although a court is authorized to extend the filing of a notice of claim beyond the 90–day period, the time for filing may not be extended beyond the expiration of the applicable statute of limitations.

The decedent first sustained injuries at some point in early 2004 and died on 21 November 2004. Since a notice of claim was not filed within 90 days from her death, leave to file a late notice was necessary. The personal injury claim accrued no later than the date of her death and, absent the application of a toll, the one–year–and–90–day limitations period expired in February 2006. Because the request for leave to file a late notice was not made within that time frame, as mandated by General Municipal Law, an extension of time to file such notice is not statutorily authorized unless the limitations period was tolled.

In wrongful death actions, claims belong to a decedent’s distributees rather than the estate standing in place of the decedent. For example, we observed that “any damages recovered are exclusively for the benefit of the decedent’s distributees” and that “the cause of action is not part of and bears no legal relationship to decedent’s estate”. Moreover, any damages must be “measured by the effect of the wrongful act on the distributees-the pecuniary loss suffered by the individual distributees as a result of decedent’s death” (id.). In contrast, a personal injury action brought seeks damages for an injury to the decedent and belongs to the estate. Lastly, we stressed that in a wrongful death case involving a sole infant distributee, it is the “infant child who has suffered any loss recognized by law” ( id.).

As held before, where no personal representative was otherwise available, it was reasonable to look at the distributee’s infancy status because the wrongful death claim belonged to him and would compensate him for damages that he directly sustained as a result of his mother’s death. A Queens Personal Injury Lawyer said that the distributee was “the only person … whose interests are at stake in bringing this [wrongful death] action”. In effect, we treated the distributee as the plaintiff under the tolling statute because, for all intents and purposes, the claim was his own.

Now, unlike a wrongful death claim that directly compensates a decedent’s distributees for their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased-in other words, it is a claim assumed by the estate.
A wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. On the other hand, a personal injury action on behalf of the deceased seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate. Such a claim is personal to the deceased and belongs to the estate, not the distributees. The types of damages that are recoverable are different and the calculations of damages for the two claims are based on separate factors.
For the reason that it is the estate that recovers in a personal injury action, any proceeds will first be applied to outstanding liens, debts or expenses. Only after the obligations of the estate are fulfilled would any remaining funds be paid to beneficiaries or distributees. This is in stark contrast to the damages recoverable in a wrongful death action, where any proceeds are generally not subject to the claims of the estate’s creditors. In short, the two causes of action are “predicated on essentially different theories of loss which accrue to different parties”. The infant distributees here do not seek to recover their own damages through a personal injury claim. Rather, they hope to inherit through intestacy any damages that their sister would have been entitled to had she survived. The necessary connection between infant distributees and a personal injury action brought on behalf of the deceased under is missing since such a claim redresses a wrong suffered by the deceased, not the distributees.

In conclusion, the special infancy toll applicable in wrongful death actions involving sole infant distributees is not available for personal injury claims.

Consequently, the motion was denied and the personal injury claim dismissed.

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