177 Misc. 820 | N.Y. Sup. Ct. | 1941
The plaintiffs bring this action under section 29 of the Workmen’s Compensation Law to recover damages for the death of Charles B. Kittel, an employee of the New York State Department of Public Works, who received personal injuries on July 31, 1940, on a public highway in the town of Howard, Steuben county, N. Y., when a truck which he was driving was involved in a collision with a motor vehicle owned by the town of Howard and operated by one of its employees. Kittel died on August 3, 1940, as a result of these injuries and left him surviving a wife as his only heir and next of kin. The New York State Department of Public Works insured its employees in the State Insurance Fund under the provisions of the Workmen’s Compensation Law. The widow elected to take compensation, and on October 28, 1940, an award of compensation was made to her. She failed to bring an action against the town of Howard or its employee within six months from the date of the first award of compensation to her. On July 10, 1941, the plaintiffs served a verified notice of claim and intention to sue upon the town clerk and upon the supervisor of the town of Howard. More than fifteen days expired after the service of this notice by registered mail and no action was commenced against the town of Howard. The plaintiffs now bring this action, alleging that Charles B. Kittel met his death through the carelessness and negligence of the defendant and its agents and servants.
The complaint sets out all these facts and asks damages for $25,000. The defendant interposed the affirmative defense that the plaintiffs had failed to file notice of their claim within the time limited by section 67 of the Town Law. The plaintiffs now move to strike out this affirmative defense as insufficient in law, and the defendant makes a cross-motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action. The plaintiffs resist the motion to dismiss on the ground that they filed a verified notice of claim and intention to sue with the proper officials of the town of Howard within ninety days after they became entitled to sue under section 29 of the Workmen’s Compensation Law and within one year from the date of the injury and death of the injured employee.
The focal issue is whether the plaintiffs have complied with section 67 of the Town Law in filing their notice of claim within ninety days after the cause of action was assigned to them by operation of law but more than ninety days after the date of the injury to Charles B. Kittel.
The pertinent statutes are subdivisions 1 and 2 of section 29 of the Workmen’s Compensation Law and section 67 of the Town
Section 67 of the Town Law provides: “ Any claim other than a claim specified in section seventy-four of the Highway Law which may be made against the town for damages for wrong* or injury to person or property or for the death of a person, shall state when, where and how such injuries or death were occasioned and the nature and extent of such injuries and duplicate copies thereof shall be filed with the supervisor and town clerk of the town. Such notice shall be filed within ninety days after the injury complained of and shall contain a statement of the place of residence of the complainant, a description of the time when and the particular place where and the circumstances under which the injuries complained of were sustained, the cause thereof, and, so far as then practicable, the nature and extent thereof and shall be verified by the complainant, and the town shall not be liable unless such verified notice or a copy thereof be so filed. No action shall be commenced upon such claim until the expiration of fifteen days after the service of such notice and no action may be commenced subsequent to one year after the alleged cause of action accrued. This section shall not apply to claims for damages or compensation for property taken for highway purposes.” (Added by Laws of 1935, chap. 435; amd. by Laws of 1940, chap. 408, effective April 11, 1940.)
It is clear that there is an apparent conflict between the two statutes. The plaintiffs had no cause of action against the defendant until the widow of the injured employee had taken compensation
The purpose of section 67 of the Town Law seems to me paramount. That purpose would be largely defeated if the State Insurance Fund or an insurance carrier could wait for more than six months before filing a notice of claim. The courts have always been alert to require a strict compliance with charter and statutory provisions for the filing of claims against municipalities. (Winter v. City of Niagara Falls, 190 N. Y. 198; Russo v. City of New York, 258 id. 344; Rogers v. Village of Port Chester, 234 id. 182; Derlicka v. Leo, 281 id. 266; Kosiba v. City of Syracuse, 260 App. Div. 557.) Now, when the assault on the citadel of governmental immunity is proceeding apace by statute and decision (Gen. Mun. Law, §§ 50-a, 50-b, 50-c, 50-d; Duren v. City of Binghamton, 283 N. Y. 467), the need of exacting a careful observance of all statutory requirements for the preservation of claims against municipalities is even greater. The only excuse for a failure to comply with these requirements which the courts have recognized is physical or mental disability or infancy so young as to amount to mental disability. (Adonnino v. Village of Mount Morris, 171 Misc. 383.)
No new cause of action was created in favor of the State Insurance Fund under subdivision 2 of section 29 of the Workmen’s Compensation Law when the widow of the injured employee accepted compensation and failed within six months after the award to commence action against the negligent third party. The very word “ assignment ” connotes an existing cause of action. The Statute of Limitations, moreover, runs from the date of the injury or from the date of the death, of the decedent and not from the time the insurance carrier or the State Insurance Fund becomes the owner of the cause of action by operation of law. (Exchange M. I. Ins. Co. v. Central Hudson Gas & Electric Co., 243 N. Y. 75.)
It is true that section 29 of the. Workmen’s Compensation Law places in the hands of the dependents of the dead employee the power to transfer to the State Insurance Fund or other insurance
The case of Manufacturers’ Liability Ins. Co. v. Overseas Shipping Co., Inc. (130 Misc. 710), on which the plaintiffs rely, is not persuasive on the facts here. In that case the court held that upon the death of an injured employee from causes unrelated to the accident, a cause of action in favor of an insurance carrier who had paid an award of compensation did not abate. At the time of this decision section 119 of the Decedent Estate Law, providing that a cause of action survives the death of a person in whose favor it existed, had not yet been passed. There was nothing in that case that the insurance carrier could have done to avert the destruction of the cause of action. Here, on the other hand, the State Insurance Fund could have filed a notice of claim with the town against a contingency which later happened.
The construction of the statutes which I have adopted does no violence to the language of either statute and leaves ample room for fulfilling the purpose of each statute. A timely assertion of the rights of the State Insurance Fund could have been made and, if it had been made, the defendant would have had the timely notice of the happening of the accident which the Town Law unequivocally requires. ¡
The motion of the plaintiffs to strike out the affirmative defense contained in the second paragraph of paragraph “ 8 ” of the answer is denied, and the motion of the defendant to dismiss the complaint' is granted, with costs to the defendant.
Let order enter accordingly.
