Dale v. Half Hollow Hills School

37 A.D.2d 778, 325 N.Y.S.2d 267, 1971 N.Y. App. Div. LEXIS 3403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1971
• Status: Published

Opinion

In an action to recover damages for wrongful death, etc., the appeal is from an order of the Supreme Court, Suffolk County, dated August 15, 1968, which granted plaintiffs’ cross motion to amend their notice of claim. Order modified by adding to the decretal provision therein, which granted said cross motion, the following: “except that the portion of plaintiffs’ cross motion which seeks to amend said notice of claim mme pro tunc so as to include a claim on behalf of plaintiffs Harry Dale and Helene Carol Dale for mental anguish as father and mother, respectively, of the deceased infant, is denied ”. As so modified, order affirmed, without costs. Plaintiffs may not recover for the mental pain and suffering sustained by them resulting from their seven-year-old daughter having being struck and fatally injured by a school bus owned by defendant School District and driven by defendant Montgomery (Tobin v. Grossman, 24 N Y 2d 609). Accordingly, the branch of plaintiffs’ motion which seeks to amend their notice of claim nunc pro tunc under subdivision 6 of section 50-e of the General Municipal Law, so as to interpose a claim for such mental anguish, should have been denied by Special Term (Owen v. Derry, 71 N. H. 405). Assuming such a claim would in fact constitute a valid cause of action, an amendment seeking to interpose it would be of a substantive nature and, therefore, not within the purview of this provision of the General Municipal Law. It would be, in effect, the interposition of a new cause of action subsequent to the time limited by statute (Matter of Kinard v. City of New York, 26 A D 2d 821). Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.