CANTON, NY:   George v Phippen  2018 NY Slip Op 50809(U)  Decided on June 5, 2018
Supreme Court, St. Lawrence County  Farley, J. is the story of a simple car accident encumbered by a number of missteps.  It is a cautionary tale for legal malpractice observers.  It all starts with a traffic accident with a municipal dump truck.

“On July 19, 2016, Plaintiff Douglas M. George (“George”) was involved in a motor vehicle accident with a truck owned by Defendant Town of Stockholm, New York (“Town”), and operated by Defendant Derec C. Phippen (“Phippen”) during the course of Phippen’s employment for the Town. George was operating a 2013 Toyota sedan owned by his wife, Plaintiff Joanne Shenandoah (“Shenandoah”). Because he did not timely serve a notice of claim under New York General Municipal Law (“GML”) § 50-e (1), George commenced a special proceeding (“Special Proceeding”) (Index No. 149142) by order to show cause (“OSC”) seeking leave to serve the Town and Phippen with a late notice of claim under GML § 50-e (5). This Court granted George’s application, and the Order (“Order”) was filed and entered with the St. Lawrence County Clerk on February 27, 2017. On Monday, November 27, 2017, George and Shenandoah filed a Summons and Complaint using the Index Number of the Special Proceeding. Now before the Court is Defendants’ motion to dismiss this action pursuant to NY C.P.L.R. § 3211 (a) (5) as barred by the one year and 90-day statute of limitations set forth in GML § 50-i (1). For the reasons which follow, the Court denies Defendants’ motion to dismiss with respect to George’s cause of action, and grants Defendants’ motion with respect to Shenandoah’s claims.”

“After counsel for Defendants advised the Court the Town and Phippen did not intend to [*2]oppose George’s Order to Show Cause, on January 25, 2017, this Court signed the Order [Ex. C to Brandi aff.] permitting George to serve the Notice of Claim upon them both. The Order was filed with the St. Lawrence County Clerk on February 27, 2017. See Hobaica aff. at ¶ 4 & Ex. 1 [date-stamped Order]; see Brandi Reply aff. at ¶ 6. The Notice of Claim alleged a claim for George only, and did not mention Shenandoah or assert a claim on her behalf.

On April 11, 2017, Defendants conducted an examination of George pursuant to GML § 50-h. George testified the accident took place July 19, 2016, as he was driving to Canada for the purpose of speaking at a cultural seminar, when Defendants’ dump truck veered to its left before making a right turn and striking the vehicle which George was operating. See Transcript of GML § 50-h hearing [Ex. E to Brandi aff.], at 12, 13. At this examination, George testified he had been married to Shenandoah for 25 years; they work “as a partnership” where “she does music and I do the cultural component”; and, his wife “experienced liver failure and [ ] hasn’t been working steadily since July of 2015.” Id. at 5, 10-11, 63. Shenandoah was not examined pursuant to GML § 50-h because she was not identified as a claimant in the Notice of Claim. See Brandi aff. at ¶ 13.

On Monday, November 27, 2017 — 496 days after the July 19, 2016, accident — Plaintiffs filed a Summons and Complaint [FN1] using the Index Number from the Special Proceeding, listing both George and Shenandoah as Plaintiffs, and setting forth a first cause of action for George’s injuries, and a second cause of action alleging a derivative claim on behalf of Shenandoah. By letter Order signed January 29, 2018, in the Special Proceeding [Ex. 2 to Hobaica aff.], the Court directed Plaintiffs to acquire a new index number and the Clerk to assign that index number nunc pro tunc to the November 27, 2017, filing of the Summons and Complaint. Plaintiffs’ Amended Complaint dated February 1, 2018 (“Complaint”), correctly identifies July 19, 2016 as the date of accident. Complaint [Ex. 3 to Hobaica aff.] at ¶¶ 6-9. Plaintiffs’ counsel acknowledges any earlier references that July 18, 2016, was the accident’s date were “typographical date errors.” Hobaica aff. at ¶ 10.”

“In the case at bar, the toll was in effect for forty (40) days — from January 18, 2017 (date of personal service of OSC) to February 27, 2017 (entry date of Order granting relief). Adding this toll to the 455-day statute of limitations results in the statute of limitations expiring November 26, 2017 — 495 days after the July 19, 2016, motor vehicle accident. Although he did not commence this action until the 496th day — November 27, 2017 — George’s claim is saved because November 26, 2017 was a Sunday. In pertinent part, New York Construction Law (“GCL”) § 25-a provides:

When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day [ ].

Id. (emphases added).

See Cyens v. Town of Roxbury, 40 AD2d 915, 915 (3d Dep’t 1972) (citing GCL §25-a; “since the period within which appellants’ action [pursuant to GML § 50-i] had to be commenced expired on a Saturday, appellants had until [the following] Monday [ ] to commence their action”). Accordingly, the Court denies Defendants’ motion to dismiss with respect to George’s claim and cause of action.

Having found George’s claim and cause of action timely, the Court next addresses Shenandoah’s derivative cause of action. Shenandoah’s claim and cause of action differs from George’s in several key respects: (1) George’s original motion by order to show cause for leave to [*6]file late notice of claim concerned him only, and did not mention Shenandoah; (2) the resulting Order concerned George only, and did mention Shenandoah or any claim which she might have; and, (3) the Notice of Claim sets forth a claim for George only. In addition, and because George was the only person granted leave to serve late notice of claim, Defendants conducted the hearing pursuant to GML § 50-h of George only, and no testimony was offered by or taken from Shenandoah. Further, although opposing Defendants’ motion seeking dismissal of Shenandoah’s claim, Plaintiffs have not: (1) cross-moved under GML § 50-e (5) for leave to serve a late notice of claim with respect to Shenandoah; (2) provided a proposed notice of claim including Shenandoah’s claims; or, (3) cross-moved under GML § 50-e (6) to amend the original notice of claim on the ground of a “mistake, omission, irregularity or defect made in good faith in the notice [of claim].”

The Court grants Defendants’ motion and dismisses Shenandoah’s derivative cause of action for three reasons. First, and as noted above, “a court is without power to authorize the late filing of a claim or to order that a late filed claim be deemed timely nunc pro tunc where the statute of limitations has expired.” E.g.Schwinghammer v. Sullivan W. Cent. School Dist., 2 AD3d 1126, 1126-27 (3d Dep’t 2003) (citing Pierson, 56 NY2d at 954-55). The Second Department’s decision in Martin v. Village of Freeport, 71 AD3d 745 (2d Dep’t 2010), is instructive. In that case plaintiff, guardian of her daughter (an incapacitated person), had previously sought and obtained leave to serve a late a notice of claim, which “did not include a derivative claim.” 71 AD3d at 745. After commencing suit, plaintiff sought leave to amend her complaint to include a derivative claim, but did not move either: (1) for leave to serve a late notice of the derivative claim; or, (2) to amend the original notice of claim to include a derivative claim. Denying plaintiff’s motion to amend her complaint, the Second Department held “under these circumstances [ ] plaintiff was foreclosed from asserting a derivative claim against [defendant].” IdSee alsoBoakye-Yiadom v. Roosevelt Union Free School Dist., 57 AD3d 929, 931 (2d Dep’t 2008) (“[a] plaintiff may not maintain causes of action for which he failed to serve a timely notice of claim”). As in Martin, George’s Notice of Claim — for which he received leave of court to serve, with the accompanying toll — did not include any derivative claim. Accordingly, Shenandoah is not entitled to any toll, and her cause of action is untimely.”