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Plaintiff Seeks to Increase Damage Amount

Probate Lawyers said the defendants appeal from an order of the Supreme Court, Richmond County, which granted the plaintiff’s motion to remove the case from the Civil Court of the City of New York to the Supreme Court, Richmond County, to amend the complaint to set forth a cause of action for wrongful death and to increase the amount of damages requested.

Following an automobile accident which occurred on July 10, 1971, the plaintiff brought this action in the Civil Court of the City of New York, Richmond County, on May 24, 1972, alleging negligence on the part of the defendants and requesting a total of $14,000 damages for injury to personal property, for personal injuries sustained by his son, aged 16, and for consequential damages sustained by the plaintiff-father.

An Estate lawyer said that the two automobiles of the defendants collided, sending one of them into the parked automobile in which the child was sitting. It is conceded that he died of Leukemia on August 14, 1972. On June 25, 1974, the plaintiff, as administrator of his son’s estate, moved in the Richmond Supreme Court for leave to amend the complaint so as to assert an action for wrongful death, to increase the amount of damages requested by the plaintiff, both as administrator and parent, and to remove the case from the Civil Court to the Supreme Court, which would have jurisdiction over the increased amount claimed.

Although it does not appear from the record exactly when each defendant was served with the amended complaint pursuant to the order, no claim is made that the 20-day limitation was not complied with. Defendants assert that service was made October 18, 1974.

Nassau County Probate Lawyers said in this appeal the defendants argue that the order should be reversed on the ground that the wrongful death cause of action asserted in the amended complaint is barred by the applicable two-year Statute of Limitations. This Statute of Limitations begins to run at the decedent’s death and in this case would bar any claim interposed after August 14, 1974.

The motion for leave to amend was made June 28, 1974, about a month and a half prior to the expiration of the two-year period, and the return date of the motion, July 9, 1974, was over a month prior to the expiration date. However, Special Term did not grant leave to amend until Septembeer 5, 1974, 22 days following the last day to interpose a claim under the statute.
The CPLR informs that a claim asserted in an amended pleading will relate back to the date of interposition of the original pleading if the required notice of the occurrence in question was given in the original pleading. However, there is no provision establishing when a claim asserted in an amended complaint is interposed in the absence of, or disregarding, such notice.

Staten Island Probate Lawyers said the defendants argue that such a claim is not interposed until the service of the amended complaint pursuant to leave. If this is so, the claim for wrongful death was not interposed until after September 5, 1974, and, unless held to have related back to an earlier date, would be barred by the Statute of Limitations. The plaintiff argues that the claim is interposed when the motion for leave to amend is made, and the supporting papers, including the proposed amended complaint is served.

From the dates involved, it can be seen that the weakness of the defendants’ theory is that, whether the plaintiff may timely serve the amended complaint depends upon the speed with which the court decides the motion for leave to amend.

The purpose of the Statute of Limitations is to force a plaintiff to bring his claim within a reasonable time, set out by the Legislature, so that a defendant will have timely notice of a claim against him, and so that stale claims, and the uncertainty they produce, will be prevented. The purpose of the statute is in no way served by a rule which would place the plaintiff in a position whereby the timeliness of his claim would depend upon the speed with which a court decides a motion.

In the present case the defendant had notice of the claim before the expiration of the Statute of Limitations when the supporting papers containing the proposed amended complaint were served, and we find that this is the most appropriate time to deem a claim asserted in an amended complaint to be ‘interposed’ so as to stop the Statute of Limitations. As compared with other possibilities, deeming the claim to be interposed on the date the motion is made and the proposed amended complaint served has the advantage of being certain and completely within the plaintiff’s control, not subject to the vagaries of calendar practice or calendar congestion.
Holding that a claim in an amended complaint is interposed only when the amended complaint is served pursuant to order would also create a procedural trap. Since neither the three-year Statute of Limitations for personal injuries, nor the two-year wrongful death statute, had expired when the plaintiff served his motion for leave to amend the complaint, the plaintiff could have simply served a summons in another plenary action claiming wrongful death and then have moved for consolidation or a joint trial.

In light of the above, we hold that where a court grants permission to serve an amended complaint and both the notice of motion and the proposed amended complaint are served upon the defendant prior to the expiration of the applicable Statute of Limitations, the claim asserted in the amended complaint is interposed at service of the proposed amended complaint.
In urging a contrary holding, the defendants rely heavily upon a case where the plaintiff had commenced an action for wrongful death and sought to bring in an additional defendant. Exactly two years from the date of the decedent’s death, the potential defendant was served with a notice of motion for leave to serve a supplemental summons and an amended complaint. The supplemental summons and the amended complaint served with the notice of motion were considered to be merely ‘evidentiary in nature’ (p. 60, 85 N.E.2d 616) and the claim against the new defendant was held barred by the Statute of Limitations. Whatever the validity of that holding following the enactment of the liberal amendment provisions of the CPLR, we find the Arnold holding distinguishable in that it applies to bringing in an additional defendant, a party never before served, as opposed to amending a complaint against someone who has previously been served and is already well aware that he is a defendant.

Moreover, the return date of the motion in Arnold was after the expiration of the statute, and the Court of Appeals did not have the opportunity in that case, as we do here, of assessing the impact of court delay on the Statute of Limitations.

In addition to the claim being timely because of its interposition prior to the expiration of the Statute of Limitations, we find that the Statute of Limitations is no bar in the present case since the claim asserted in the amended complaint also Relates back to the original pleading, under CPLR 203. Although the matter is not altogether free from doubt, we find the original pleading did give the defendants ‘notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading’.

The defendants also argue that even if the wrongful death claim is not barred by the Statute of Limitations, the papers supporting the motion to amend the complaint and to increase the damages were insufficient. As to the increase in damages, assuming that leave to amend the complaint was properly granted, we do not find that Special Term abused its discretion. In the present case, the plaintiff submitted his own affidavit, the affidavit of his attorney and the affidavit of his physician. The physician’s affidavit states that he ‘obtained a history’ of the accident indicating that as a result of the accident the decedent inhaled gasoline for approximately 45 minutes and that his clothing was drenched with gasoline.

A fair reading of the father’s affidavit is that the father states that gasoline spilled from either a ruptured gas tank or gas line and that his son was saturated with that gasoline and absorbed the fumes. With these allegations in the supporting affidavits, Special Term did not abuse its discretion in allowing the amendment. However, in so holding we do not imply that the allegations are sufficient to withstand a motion for accelerated judgment.

Where the record affords sufficient information for an informed decision, as in the Statute of Limitations question herein, we see no reason to proliferate motion practice ‘through avoiding coming to grips with the substantial question’. However, where the papers adequately support a motion for leave to amend, but are not sufficiently full to support a decision on a matter of substance, we find the better practice is to allow amendment, with leave to a party so desiring to raise the substantive issue at a later date.

Order of the Supreme Court, Richmond County, dated September 5, 1974, affirmed, with $20 costs and disbursements jointly against appellants appearing separately and filing separate briefs.

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