Perry v. City of New York (1998)

Our plain-English summary of Perry v. City of New York (New York Supreme Court, Appellate Division, January 15, 1998).

Roy Perry was diagnosed in September 1994 with asbestos-related malignant mesothelioma. He had worked for many years as a porter for the Staten Island Ferry Fleet, and the claim alleged his disease came from exposure to asbestos-containing material there. A notice of claim for personal injuries was served on the City of New York in December 1994. Mr. Perry died in July 1995. His widow, Mary Perry, then asked the court to let her add a wrongful death claim to the notice, or to plead it in the complaint. The trial court refused. It accepted the City's argument that the notice was a nullity because it left out the diagnosis date, and it treated her request as a motion to file a late notice. The Appellate Division reversed. It held that missing information in a notice of claim can be corrected if the mistake was in good faith and the City was not prejudiced. There was no claim of bad faith, and the City showed only a general claim of prejudice. The notice gave enough information for the City to begin an investigation. The widow could therefore amend the notice. The City remained free to raise a statute of limitations defense.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: January 15, 1998
• Citation: 246 A.D.2d 380
• Stage: Appeal from other
• State: New York

Outcome. The Appellate Division reversed the trial court's denial of the widow's motion, ruling she should have been allowed to amend the notice of claim to add a wrongful death cause of action against the City of New York.

What the court held. Under General Municipal Law § 50-e (6), a defect or omission in a notice of claim, such as a missing diagnosis date, may be corrected in the court's discretion where it was made in good faith and the municipality was not prejudiced.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• Roy Perry: mesothelioma; died

The defendants

• City of New York (employer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

246 A.D.2d 380 (1998)

667 N.Y.S.2d 722

Mary A. Perry, Appellant,

v.

City of New York et al., Respondents

January 15, 1998

Appellate Division of the Supreme Court of the State of New York, First Department.

Concur — Milonas, P. J., Rubin, Tom, Mazzarelli and Colabella, JJ.

*381Roy Perry, plaintiff's deceased husband, was diagnosed on September 21, 1994, with asbestos-related malignant mesothelioma, allegedly sustained as a result of exposure to asbestos-containing material over the many years he worked as a porter for the Staten Island Ferry Fleet. A notice of claim alleging personal injuries was served on December 20, 1994. Mr. Perry died on July 30, 1995, and plaintiff thereafter moved by order to show cause dated June 4, 1996, for an order pursuant to General Municipal Law § 50-e (6) to allow her to add a cause of action for wrongful death in the notice of claim, or, in the alternative, to allege such cause of action in the complaint that had not yet been served.

381

The IAS Court rejected her application, adopting the City's position that, because the notice of claim failed to state the date of Mr. Perry's diagnosis, the notice was fatally defective and therefore a nullity; that the time within which plaintiff could have corrected the defective notice had already run; and that therefore the only recourse left to plaintiff was to move to file a "late notice of claim for permission to file a wrongful death cause of action." The court therefore converted her application into such motion, giving her 30 days within which to do so.

We find that, on the record before us, it was error for the court to deny plaintiff's motion. General Municipal Law § 50-e (6) provides that any "mistake, omission, irregularity or defect" in a notice of claim may be "corrected, supplied or disregarded" in the court's discretion, where the mistake was made in good faith and the municipality was not prejudiced thereby (D'Alessandro v New York City Tr. Auth., 83 N.Y.2d 891). Here, there is no allegation that the omission of the diagnosis date was made in bad faith. Rather, the City makes only a general claim of prejudice, alleging that because it did not know if the claim was valid or time-barred, it could not properly determine what "priority" to assign the investigation. While the City of course may choose to raise a Statute of Limitations defense to plaintiff's claim, the information actually provided in the notice was sufficient to enable the City to commence an investigation. [*382] Accordingly, rather than denying plaintiff's motion, thereby depriving her of certain claims, the court should have permitted her to amend the notice of claim to add a wrongful death cause of action.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites