Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Victoria Scalzo of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Opinion
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered July 16, 2015, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging wrongful death on the ground that the plaintiffs failed to serve an adequate notice of claim pursuant to General Municipal Law § 50–e.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the
cause of action alleging wrongful death on the ground that the plaintiffs failed to serve an adequate notice of claim pursuant to General Municipal Law § 50–e is denied.
A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation (see General Municipal Law § 50–e[1][a] ; Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ). With respect to most torts, service of the notice of claim must be made within 90 days after the claim arises, but “in wrongful death actions, the [90] days shall run from the appointment of a representative of the decedent's estate” (General Municipal Law § 50–e[1][a] ).
General Municipal Law § 50–e(2) sets forth the criteria for the contents of a notice of claim. In pertinent part, the statute requires that the claimant state the nature of the claim and the time when, the place where, and the manner in which it arose (see General Municipal Law § 50–e[2] ). The purpose of providing this information in a timely manner is so that the defendant can conduct a proper investigation and assess the merits of the claim while the information is still readily available (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 359, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d 957, 959, 7 N.Y.S.3d 419 ; DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698, 583 N.Y.S.2d 285 ).
“The Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim ...
General Municipal Law § 50–e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” (
DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698,
583 N.Y.S.2d 285, citing
Schwartz v. City of New York, 250 N.Y. 332, 333,
165 N.E. 517 ;
see generally
Baker v. Town of Niskayuna, 69 A.D.3d 1016, 1017–1018,
891 N.Y.S.2d 749 ). Accordingly, a claimant need not state “a precise cause of action in haec verba in a notice of claim” (
DeLeonibus v. Scognamillo, 183 A.D.2d at 698,
583 N.Y.S.2d 285 ;
see
Steins v. Incorporated Vil. of Garden City, 127 A.D.3d at 959,
7 N.Y.S.3d 419 ;
Bartley v. County of Orange, 111 A.D.3d 772, 774,
975 N.Y.S.2d 170 ).
Contrary to the Supreme Court's determination, the plaintiffs' notice of claim adequately apprised the defendant that the claimant would seek to impose liability under a wrongful death theory of recovery (cf. Steins v. Incorporated Vil. of Garden City, 127 A.D.3d at 959, 7 N.Y.S.3d 419 ; Crew v. Town of Beekman, 105 A.D.3d 799, 800, 962 N.Y.S.2d 677 ; see generally Bartley v. County of Orange, 111 A.D.3d at 774, 975 N.Y.S.2d 170 ; Miller v. City of New York, 89 A.D.3d 612, 933 N.Y.S.2d 36 ; Baker v. Town of Niskayuna, 69 A.D.3d at 1017–1018, 891 N.Y.S.2d 749 ). Accordingly, the Supreme Court should have denied that branch of
the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging wrongful death on the ground that the plaintiffs failed to serve an adequate notice of claim pursuant to General Municipal Law § 50–e.