Summary
stating that the derivative claims must be dismissed where the direct cause of action was time-barred
Summary of this case from Ross v. United StatesOpinion
2002-03943
Argued January 30, 2003.
February 24, 2003.
In an action to recover damages for personal injuries, etc., the defendants Metropolitan Transportation Authority and the Long Island Rail Road appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated March 5, 2002, as denied those branches of their motion which were to dismiss the complaint insofar as asserted against them on behalf of the plaintiffs Celestino Carrasquillo and Awilda Carrasquillo.
Cerussi Spring, White Plains, N.Y. (Peter E. Riggs of counsel), for appellants.
Lipsig Shapey Manus Moverman, P.C. (Thomas J. Moverman and Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondents.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the appellants' motion which were to dismiss the complaint insofar as asserted against them on behalf of the plaintiffs Celestino Carrasquillo and Awilda Carrasquillo are granted, and the action against the remaining defendants is severed.
In the instant case, the applicable statute of limitation is one year and 30 days (see Burgess v. Long Is. R. R. Auth., 79 N.Y.2d 777; Wenning v. Metropolitan Transp. Auth., 112 A.D.2d 220). The action was commenced more than one year and 30 days after the causes of action accrued.
The statute of limitations with respect to the plaintiff Awilda Carrasquillo's derivative cause of action was "tolled from the time [she] commenced the proceeding for leave to file a late notice of claim until the order granting leave became effective" (Toro v. City of New York, 271 A.D.2d 523; see Giblin v. Nassau County Med. Center, 61 N.Y.2d 67). However, the toll did not apply to her husband's causes of action against the appellants (see Cody v. Village of Lake George, 177 A.D.2d 921). Accordingly, her husband's causes of action against the appellants must be dismissed as time-barred. Further, dismissal of her husband's causes of action against the appellants as untimely bars her derivative cause of action against the appellants (see Cody v. Village of Lake George, supra; see also Buckley v. National Frgt., 220 A.D.2d 155, affd 90 N.Y.2d 210; Thorn v. International Business Machines, 101 F.3d 70).
The parties' remaining contentions are without merit or need not be addressed in light of our determination.
SMITH, J.P., GOLDSTEIN, TOWNES and MASTRO, JJ., concur.