Kettle v. Sweet Home Central School District

152 A.D.2d 956, 543 N.Y.S. 783, 543 N.Y.S.2d 783, 1989 N.Y. App. Div. LEXIS 16823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1989
• Status: Published

Opinion

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 AD2d 690; Laudico v Sears, Roebuck & Co., 125 AD2d 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. (Appeal from order of Supreme Court, Erie County, Doyle, J. — amend complaint.) Present — Doerr, J. P., Denman, Boomer, Balio and Lawton, JJ.