| Se Dae Yang v New York City Health & Hosps.Corp. |
| 2016 NY Slip Op 04929 [140 AD3d 1051] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| Se Dae Yang, Individually and as Administrator of theEstate of Kumja Yang, Deceased, et al., Appellants, v New York City Healthand Hospitals Corporation, Respondent. |
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and VictoriaScalzo of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Kerrigan, J.), entered July 16, 2015, as granted thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismissthe cause of action alleging wrongful death on the ground that the plaintiffs failed toserve 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) todismiss the cause of action alleging wrongful death on the ground that the plaintiffsfailed 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 tortclaim against a municipality or public benefit corporation (see General MunicipalLaw § 50-e [1] [a]; Brown v City of New York, 95 NY2d 389, 393[2000]). With respect to most torts, service of the notice of claim must be made within 90days after the claim arises, but "in wrongful death actions, the [90] days shall run fromthe 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 contentsof a notice of claim. In pertinent part, the statute requires that the claimant state thenature 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 providingthis information in a timely manner is so that the defendant can conduct a properinvestigation and assess the merits of the claim while the information is still readilyavailable (see O'Brien v City of Syracuse, 54 NY2d 353, 359 [1981]; Steins v Incorporated Vil. ofGarden City, 127 AD3d 957, 959 [2015]; DeLeonibus v Scognamillo,183 AD2d 697, 698 [1992]).
"The Legislature did not intend that the claimant have the additional burden of [*2]pleading causes of action and legal theories, proper for thepleadings, in the notice of claim . . . General Municipal Law§ 50-e was not meant as a sword to cut down honest claims, but merely as ashield to protect municipalities against spurious ones" (DeLeonibus vScognamillo, 183 AD2d 697, 698 [1992], citing Schwartz v City of NewYork, 250 NY 332, 333 [1929]; see generally Baker v Town of Niskayuna, 69 AD3d 1016,1017-1018 [2010]). Accordingly, a claimant need not state "a precise cause of action inhaec verba in a notice of claim" (DeLeonibus v Scognamillo, 183 AD2d at698; see Steins v Incorporated Vil. of Garden City, 127 AD3d at 959; Bartley v County of Orange,111 AD3d 772, 774 [2013]).
Contrary to the Supreme Court's determination, the plaintiffs' notice of claimadequately apprised the defendant that the claimant would seek to impose liability undera wrongful death theory of recovery (cf. Steins v Incorporated Vil. of GardenCity, 127 AD3d at 959; Crew v Town of Beekman, 105 AD3d 799, 800 [2013];see generally Bartley v County of Orange, 111 AD3d at 774; Miller v City of New York, 89AD3d 612 [2011]; Baker v Town of Niskayuna, 69 AD3d at 1017-1018).Accordingly, the Supreme Court should have denied that branch of the defendant'smotion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action allegingwrongful death on the ground that the plaintiffs failed to serve an adequate notice ofclaim pursuant to General Municipal Law § 50-e. Rivera, J.P., Roman,Maltese and Duffy, JJ., concur.