| De'Leone v City of New York |
| 2007 NY Slip Op 08269 [45 AD3d 254] |
| November 1, 2007 |
| Appellate Division, First Department |
| Joseph Lee De'Leone, an Infant, by His Legal Guardian andAdoptive Mother, Deborah Angel, et al., Respondents, v City of New York et al.,Appellants, et al., Defendant. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York City (Mary C. Mathwich andRichard E. Lerner of counsel), for Jewish Child Care Association of New York, appellant. Callan, Koster, Brady & Brennan, LLP, New York City (Marc R. Wilner of counsel), forMilcia Pineda, appellant. Gregory J. Cannata & Associates, Irvington (Diane Welch Bando of counsel), forrespondents.
Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 12, 2006, which,to the extent appealed from, granted the motion of the infant plaintiff to amend his notice ofclaim pursuant to General Municipal Law § 50-e (6) and to amend his complaint to allegea derivative claim on behalf of plaintiff Deborah Angel, unanimously modified, on the law, to theextent of striking from the amended complaint that part of Deborah Angel's derivative claimwhich seeks damages for loss of services, society and companionship of plaintiff Joseph LeeDe'Leone, and otherwise affirmed, without costs.
Even though Deborah Angel adopted the infant plaintiff after the tort at issue occurred, theadoptive mother had standing to assert a derivative claim for future medical expenses incurred onthe child's behalf. To deprive the adoptive mother of the ability to recover medical expenseswould unreasonably interfere with her absolute duty to support her minor child (see Clough vBoard of Educ. of Spencerport Cent. School Dist., 56 AD2d 233, 236 [1977]). Furthermore,to do so would contravene the public policy of encouraging people to adopt children facingdifficult circumstances, such as the infant plaintiff, who was severely beaten while in foster careand sustained allegedly permanent injuries. Accordingly, with regard to future medical expenses,the concept that one may not "marry" a lawsuit should not be extended to include "adopting" alawsuit. However, the adoptive mother should not be permitted to [*2]recover for loss of services, society and companionship of the child,just as a person may not recover for a spouse's loss of consortium where the spouse is injuredprior to the marriage (see Briggs v Butterfield Mem. Hosp., 104 AD2d 626 [1984]).
The adoptive mother's medical expense claim against the City is not barred by the statute oflimitations, as it did not accrue until she adopted the child, and it was commenced within oneyear and 90 days of that date (see Clough v Board of Educ., 56 AD2d at 237). Even if theclaim accrued at the time of the injury to the child, it is still not time-barred because the originalcomplaint, which was unquestionably timely filed, placed the City on notice of all of theunderlying transactions (see CPLR 203[f]; Caffaro v Trayna, 35 NY2d 245[1974]). For each of these reasons, the notice of claim annexed to the motion to amend was alsotimely.
Finally, we do not reach the issue, raised by defendants Jewish Child Care Association ofNew York and Milcia Pineda, of whether the child's biological mother had standing to assert aclaim on behalf of the child or her own derivative claim. While the issue was raised in oppositionto plaintiff's motion to amend, neither defendant cross-moved to dismiss the biological mother'sclaims, thus depriving the Supreme Court of any procedural context within which to consider theissue. We do note, however, that any derivative claim by the biological mother would be limitedto the time prior to the termination of her parental rights. Concur—Lippman, P.J.,Mazzarelli, Friedman, Marlow and Buckley, JJ.