New York State Court of Claims

New York State Court of Claims

MORRELL v.THE STATE OF NEW YORK, #2000-013-032, Claim No. 91134, Motion No. M-61906


Motion for leave to substitute executor in place of deceased Claimant granted. Motion for leave to amend claim to assert wrongful death claim reserved pending resolution of timeliness of original personal injury claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LOUIS J. TRIPOLI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October , 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, Peter N. Littman, Esq., filed this motion seeking to have Michael O'Connor, executor of the estate of Celeste Morrell, substituted in place of Celeste Morrell as Claimant, and for leave to assert a cause of action for Ms. Morrell's wrongful death. The following papers were read in connection with the motion:

1. Notice of Motion

2. Affidavit in Support

3. Affidavit in Opposition

4. Supplemental Affidavit in Support and Annexed Exhibit

5. Filed Papers: Claim, Answer

Claimant, Celeste Morrell, served and filed her claim on February 10, 1995, alleging that she had developed multiple myeloma from the formaldehyde contained in particle board desks manufactured by Corcraft Industries, a division of Defendant's Department of Correctional Services. Her claim was tried before me on various dates between March 16, 1999 and May 20, 1999, and there is a decision on the issue of liability pending.

Her counsel filed the instant motion on June 21, 2000. In supporting papers, he avers that Claimant died from multiple myeloma on September 5, 1999 and that the Surrogate's Court of Onondaga County issued Letters Testamentary to Michael O'Connor, Esq. on October 12, 1999. Accordingly, Claimant's counsel asks that Mr. O'Connor, in his capacity as executor, be substituted for Ms. Morrell as Claimant. Under the Court of Claims Act, Mr. O'Connor has an affirmative obligation to have himself substituted as Claimant (Court of Claims Act §15). This part of his motion, which Defendant does not oppose, is therefore granted (see, CPLR 1015; Court of Claims Act §15).

Mr. O'Connor also asks for leave to amend the claim to add a claim for wrongful death. This request, which Defendant does oppose, requires a more detailed analysis.

A personal representative may maintain an action for the wrongful death of a decedent by filing a claim within two years of the decedent's death (EPTL §§5-4.1 and 1-2.13). To comply with the time limitations of the Court of Claims Act, however, the executor must file a claim against the State of New York and serve it upon the Attorney General within 90 days after being appointed, unless he or she serves a notice of intention upon the Attorney General within the 90-day period following appointment (Court of Claims Act §10[2]). Mr. O'Connor was appointed as executor in October 1999, but did not file the instant motion until June 19, 2000. If he had served and filed a claim for wrongful death, instead of moving to amend Ms. Morrell's existing claim, the wrongful death claim would have been untimely, because he would have been asserting it more than 90 days after his appointment as executor. (id.). He has not moved for leave to assert the wrongful death claim as a late claim, or addressed the relevant factors for such relief (see, Court of Claims Act §10[6]).

This brings me to the critical issue: should Mr. O'Connor be allowed to add a wrongful death claim by amendment more than 90 days after he was appointed executor, even though a separate wrongful death claim would have been untimely? Judge Lambiase of this Court held in 1953 that such an amendment should be allowed (see, Courtright v State of New York, 204 Misc 442). In reaching this result, he relied heavily upon Holmes v City of New York (269 App Div 95, affd 295 NY 615), a case which was decided under the notice of claim provisions applicable to the City of New York (see, General Municipal Law §50-e). In Holmes, the Second Department affirmed the denial of the City's motion to dismiss a wrongful death claim. The wrongful death claim had been added to the complaint after the original plaintiff died from injuries that allegedly stemmed from the City's negligence. The City argued that the executor could not pursue the wrongful death claim because he had not filed a notice of claim relating specifically to the decedent's death. The Second Department disagreed, holding that the notice of claim filed by the decedent when she commenced the underlying personal injury claim satisfied the notice of claim requirement for the wrongful death claim:
Technically the wrongful death statute does create a new cause of action of a distinct nature for the deprivation of natural support and protection suffered by the statutory beneficiaries [citation omitted]. But substantially, and considering the nature of the redress to be afforded, it is a continuation of the original cause of action for the benefit of those dependent on the services or bounty of the deceased who have been injured by the personal wrong done to him....
In that sense, therefore, in the instant case it would seem that since a proper notice of claim was served by the intestate during her lifetime, it is not necessary for the administrator to serve another notice when a claim is made for wrongful death. Here appellant City has all necessary notice of its original wrongful act. The fact that because of subsequent events two classes of persons are, in law, entitled to recover their respective damages flowing from the same wrongful act should be of no concern to the appellant.

(Holmes v City of New York, supra, 269 App Div at 98-99; see also, Matter of Scheel v City of Syracuse, 97 AD2d 978; Mingone v State of New York, 100 AD2d 897; Secchi v City of New York, 13 Misc 2d 756.[1]) Later, the Court of Appeals held that a personal injury claim may be amended to assert a cause of action for wrongful death arising from the same incident, even after the wrongful death statute of limitations found in EPTL 5-4.1 has expired (Caffaro v Trayna, 35 NY2d 245). The Court relied upon the saving provision of EPTL 11-3.3[b][2], which provides that "[w]here an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury, before verdict, report or decision, his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5-4.1." The Court explained that the two-year time limitation for the bringing of a wrongful death claim was procedural, not substantive, and that the procedural bar created by the time limitation was overcome by CPLR 203(e) which provides that "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed..." (Caffaro v Trayna, supra).

The Court of Appeals' reasoning in Caffaro has been relied upon to permit the amendment of claims pending in this Court to add causes of action that would have been untimely if asserted separately.

For example, in Mastandrea v State of New York (57 AD2d 679), the Claimant moved to amend his claim for false arrest and assault to assert a malicious prosecution claim. He failed to file his motion, however, until more than 90 days after the malicious prosecution claim had accrued. The Third Department reversed the denial of the claimant's motion. Relying upon Caffaro and CPLR 203(e) (now CPLR 203[f]), the Court reasoned that the amendment should have been permitted because the malicious prosecution claim grew out of the same occurrence which formed the basis for the original claim for false arrest. The Court also held that the part of the claimant's motion, which sought leave to assert the malicious prosecution cause of action as a late claim, was unnecessary because the filing of the original claim not only tolled the statute of limitations on every cause of action asserted therein, but also on any cause of action thereafter arising from the facts set forth in the original claim (Mastandrea v State of New York, supra; see also, Matter of Iazzetta v State of New York, 105 Misc 2d 567, 572 [permitting a claimant to amend his claim for false arrest and malicious prosecution where the claims arose from the same incident as to which the Court had previously allowed the claimant to assert a late claim for assault, battery and negligence]).

There is one important distinction between the cases discussed above and the claim pending here: there was no dispute in those cases that the initially asserted claims were timely (see, Courtright v State of New York, 204 Misc 442, 444, supra; Holmes v City of New York, 269 App Div 95, 98, supra; Mastandrea v State of New York, supra). The only exception was Iazzetta, which was filed initially with the leave of the Court as a late claim (see, Matter of Iazzetta v State of New York, supra). In this case, however, the timeliness of Ms. Morrell's personal injury claim is a hotly disputed issue. Ms. Morrell, who admittedly filed her claim more than three years after the discovery of her injury, maintains that her claim was nevertheless timely because she commenced it within one year following her discovery of the cause of her injury and the medical knowledge sufficient to ascertain the cause of her injury had not been discovered prior to the expiration of the period within which the action or claim would have otherwise been authorized (see, CPLR 214-c[4]).

The language of CPLR 203(f) does not expressly require that the underlying claim be timely in order for the later asserted claim to relate back to the date the claim was filed. By its terms, CPLR 203(f) (formerly CPLR 203[e]) states only that "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." Nevertheless, the Court of Appeals has made clear that CPLR 203(f) "contemplates a 'valid pre-existing action to which [an] amendment can relate back'" and that an amendment sought after the expiration of the statute of limitation should not be permitted when the underlying claim is defective (Carrick v Central General Hosp., 51 NY2d 242, 249 [citing George v Mt. Sinai Hosp., 47 NY2d 170]; see also, Goldberg v Camp Mikan-Recro, 42 NY2d 1029).

The Court of Appeals made this statement in its discussion of Goldberg, a case involving a wrongful death claim that had originally been brought by a person who lacked capacity to sue because he was not the "personal representative" of the decedent's estate. It is therefore not entirely clear whether a claim should be regarded as a "valid pre-existing claim" for relation back purposes where the causes of action it originally contained were barred by the statute of limitations. Since compliance with the time requirements of the Court Claims Act are jurisdictional, however, it would seem that the Court of Claims would lack jurisdiction to permit the amendment if the underlying claim was indeed untimely (cf., Grande v State of New York, 160 Misc 2d 383, 386; Jones v State of New York, 69 AD2d 936, affd 51 NY2d 943).

The timeliness of the underlying personal injury claim also affects the meritoriousness of the wrongful death claim. The personal representative of an estate cannot assert a claim for wrongful death unless the person who allegedly caused the decedent's death "would have been liable to the decedent by reason of such wrongful conduct if death had not ensued" (EPTL §5-4.1). Thus, if the underlying personal injury claim was time barred at the time of Claimant's death, as Defendant maintains, then there is no wrongful death claim for her personal representative to assert (Kelliher v New York Center and Hudson River R.R. Co., 212 NY 207; Helgans v Plurad, 255 AD2d 554).

In sum, the ability of this Court to rule upon Mr. O'Connor's motion for leave to amend hinges upon the complicated issue of whether the original personal injury claim was timely. The Court is mindful of the fact that any decision it makes on the underlying statute of limitations issue is likely to be appealed. It is also aware of one of Defendant's principal objections to the proposed amendment -- that it will be prejudiced unless it has an opportunity to challenge the assertion that the Claimant's disease was the cause of her death. The Court concludes that the most efficient way to handle these difficulties from a case management standpoint is to reserve judgment on the motion for leave to amend until the liability decision is issued, but in the interim, to give Mr. O'Connor an opportunity to serve a proposed amended claim, and to reopen the liability phase of the trial to let the parties offer proof as to whether Ms. Morrell's death was or was not related to her exposure to furniture manufactured by Defendant. Should the Court ultimately determine that the underlying personal injury claim is untimely or that the motion for leave to amend should otherwise be denied, it will strike this evidence from the record.

October , 2000
Rochester, New York

Judge of the Court of Claims

After Holmes, the Court of Appeals held that the notice of claim and time limitation provisions found in the General Municipal Law applied to personal injury claims but not to wrongful death claims (see, Collins v City of New York, 55 NY2d 646). The same decision noted that a 1981 amendment brought wrongful death claims within the scope of the General Municipal Law (Collins v City of New York, supra, at 648; L 1981, ch 738, effective Sept. 1, 1981).