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Kettle v. Sweet Home Central School District

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1989
152 A.D.2d 956 (N.Y. App. Div. 1989)

Opinion

July 12, 1989

Appeal from the Supreme Court, Erie County, Doyle, J.

Present — Doerr, J.P., Denman, Boomer, Balio and Lawton, JJ.


Order unanimously reversed on the law without costs and plaintiff's motion denied. Memorandum: The court erred in granting plaintiff's motion to amend the complaint to add a derivative cause of action on behalf of his wife.

Following an injury sustained when he fell off the roof of a school building owned by defendant Sweet Home Central School District, plaintiff served a notice of claim dated October 7, 1983, advising defendant of a claim for personal injuries sustained by plaintiff and also of a derivative claim on behalf of plaintiff's wife. On October 4, 1984, just within the one-year-and-90-day Statute of Limitations, plaintiff served a summons and complaint on defendant. The complaint did not include a derivative cause of action on behalf of plaintiff's wife. Three and one-half years later, plaintiff sought an order permitting him to serve an amended complaint to add a derivative cause of action on behalf of his wife.

An action against a municipality for negligence must be commenced within one year and 90 days; therefore, plaintiff's wife's derivative cause of action for loss of services was time barred. Plaintiff's wife was not a party to the action as commenced and the pleadings gave no notice that she would be asserting a claim. Thus, her cause of action could not relate back to the time the action was commenced (CPLR 203 [e]; see, Clausell v Ullman, 141 A.D.2d 690; Laudico v Sears, Roebuck Co., 125 A.D.2d 960, 961).

Plaintiff's argument that the filing of a notice of claim, which included a derivative claim on behalf of his wife, gave defendant sufficient notice is unavailing. A notice of claim is not a pleading. We further add that plaintiff has failed to provide a reasonable excuse for the inordinate delay in seeking an amendment of the complaint.


Summaries of

Kettle v. Sweet Home Central School District

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1989
152 A.D.2d 956 (N.Y. App. Div. 1989)
Case details for

Kettle v. Sweet Home Central School District

Case Details

Full title:MYRON F. KETTLE, Respondent, v. SWEET HOME CENTRAL SCHOOL DISTRICT…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 12, 1989

Citations

152 A.D.2d 956 (N.Y. App. Div. 1989)
543 N.Y.S.2d 783

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