Cheeseboro et al v. New York City Health and Hospitals Corporation et al

Filing 35

MEMORANDUM AND ORDER, Pltff's time to serve its frivolous claims on the MVAIC are dismissed without prejudice pursuant to FRCP 4(m). Since pltff's withdrew at oral argument their request for an extension of time to serve Matron Jane Doe and the Doe Bus Manufacturer, pltff's claims against these dfts are also dismissed without prejudice pursuant to FRCP 4(m). The Clerk of Court is to enter partial judgment dismissing without prejudice pltff's claims against MVAIC, Matron Jane Doe and the Doe Bus Manufacturer. Since these are the last three defendants remaining in this action, The Clerk of Court shall close the case.. Ordered by Judge Sandra L. Townes on 6/10/2014. (Piper, Francine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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CHAN CHEESEBORO, RALPH WHITNEY and
DELLA CHEESEBORO,

tfl L.Po~ICI
E.D.N~.

IN
US DISTIII~~OURT

* JUN t 3 201'1 *
BROOKLYN OFFICE

Plaintiffs,
MEMORANDUM AND ORDER
-against12-CV-6439 (SLT) (SMG)
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, eta/.,
Defendants.

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TOWNES, United States District Court:
In December 2012, plaintiff Chan Cheeseboro ("Ms. Cheeseboro") and her parents, Ralph
Whitney and Delila Cheeseboro (collectively, "Plaintiffs") commenced this action to recover for
injuries Ms. Cheeseboro allegedly sustained at age 8 when the school bus in which she was
riding was involved in a motor vehicle accident with another vehicle. In their original complaint,
Plaintiffs sued six different defendants: the New York City Health and Hospitals Corporation
("HHC"), the City of New York ("NYC"), the New York City Board of Education (the "BOE"),
the Motor Vehicle Accident Insurance Corporation ("MVAIC"), Matron Jane Doe, and a Doe
Bus Manufacturer. Plaintiffs voluntarily discontinued the suit against the HHC on March 27,
2013. In a memorandum and order dated December 6, 2013, this Court granted NYC and the
BOE judgment on the pleadings.
Since none of the remaining three defendants had yet been served, this Court ordered
Plaintiffs to show cause why this action should not be dismissed without prejudice against the
MVAIC, Matron Jane Doe and the Doe Bus Manufacturer pursuant to Rule 4(m). In response to
that Order to Show Cause, Plaintiffs' counsel filed a three-page declaration (hereafter, the

"Frishberg Declaration") which, inter alia, implied that Plaintiffs had no reason to sue MV AIC
until November 12, 2013, when the bus driver testified that the insurance company insuring the
other driver had gone out of business. Plaintiffs' counsel represented that this testimony "made it
apparent for the first time that identifYing the second driver was insufficient, and that
commencing suit against MVAIC was also required based upon the driver's underinsured status."
Frishberg Declaration, 1 7.
The Frishberg Declaration also included explanations as to why Plaintiffs had failed to
serve the bus matron and bus manufacturer. However, at oral argument on June 2, 2014,
Plaintiffs' counsel clarified that Plaintiffs are no longer seeking an extension of time to serve
defendant Doe Bus Manufacturer or defendant Matron Jane Doe. Accordingly, this
memorandum and order addresses only the issue of whether Plaintiffs' claims against the
MV AIC should be dismissed without prejudice pursuant to Rule 4(m).
DISCUSSION

Rule 4(m) provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is
filed, the court--on motion or on its own after notice to the
plaintiff--must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
In this case, the Court must extend the time to serve the MVAIC if Plaintiffs can show good
cause for the failure to serve that defendant within 120 days. If Plaintiffs cannot show good
cause, the Court has the option of either dismissing Plaintiffs' claims against the MVAIC without
prejudice or extending the time for serving that defendant.

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In this case, Plaintiffs have not demonstrated good cause for failure to serve the MV AIC
sooner. The Frishberg Declaration asserts that the bus driver's testimony regarding the other
driver's insurance company having gone out of business "made it apparent for the first time that
... commencing suit against MVAIC was also required based upon the driver's underinsured
status." Frishberg Declaration,~ 7. Yet, the MVAIC was named as a defendant in the original
complaint filed in April2012. Plaintiffs' counsel's explanation, therefore, is unconvincing.
Moreover, the undisputed facts in this case do not suggest that Plaintiff has a cause of
action against the MV AIC. The MV AIC does not function as a re-insurer, guaranteeing the
obligations of insolvent insurance companies. Rather, the MV AIC is statutorily empowered only
to settle and pay claims brought by a "qualified individual" against a "financially irresponsible
motorist." N.Y. Ins. Law§ 5206(d). Both these terms are defined in N.Y. Ins. Law§ 5202. A
"financially irresponsible motorist" means:
the owner, operator, or other person legally responsible for the
operation of an uninsured motor vehicle involved in an accident
resulting in personal injury or death who did not have in effect at
the time of such accident either:
(I) a valid and collectible policy of bodily injury liability and
property damage liability insurance or bond with applicable limits
at least equal to those specified in section three hundred eleven of
the vehicle and traffic law; or

(2) a certificate of self insurance issued by the department of motor
vehicles pursuant to section three hundred sixteen of the vehicle
and traffic law; or
(3) who has not otherwise complied with the provisions of section
three hundred twelve of the vehicle and traffic law; or
(4) who does not have in effect at the time of such accident a valid
and collectible policy of bodily injury liability and property

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damage liability insurance with applicable limits at least equal to
those specified in section 25.13 of the parks, recreation and historic
preservation law.
N.Y. Ins. Law§ 52020) (emphasis added). An "uninsured motor vehicle" is defined as anything
other than an "insured motor vehicle," N.Y. Ins. Law§ 5202(d), which is defined as "a motor
vehicle as to which there is maintained proof of financial security as defined in subdivision three
of section three hundred eleven of the vehicle and traffic law or section 25.13 of the parks,
recreation and historic preservation law." N.Y. Ins. Law§ 5202(c).
At oral argument on June 2, 2014, Plaintiffs' counsel conceded that the driver of the car
involved in the accident with the school bus was not a "financially irresponsible motorist."
According to Plaintiffs' counsel, the bus driver implied that the other driver was insured at the
time of the accident, but that the company insuring the other driver became insolvent sometime
after the accident. Accordingly, Plaintiffs would not be protected under the MV AIC.
Furthermore, even if Plaintiffs were eligible for protection under the MV AIC, they would
have had to file the notice of claim required under N.Y. Insurance Law§ 5208. Section 5208(a)
states that "[t]he protection provided by the [MVAIC] on account of motor vehicle accidents
caused by financially irresponsible motorists shall be available" only to a "qualified person" who
files an affidavit with the MV AIC within a certain time. Without going into unnecessary detail,
affidavits must generally be filed within 90 to 180 days. See § 5208(a).
To be sure, section 5208(b) provides that if a qualified person fails to file the notice of
claim within the prescribed period "by reason of being an infant," a Court may grant leave to file
the notice of claim "within a reasonable time after the expiration of the specified period." See
Daniels by Clarke v. Rodriguez, 171 Misc.2d 420,422, 654 N.Y.S.2d 552, 554 (N.Y. Sup. Ct.
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1996). Although § 5208(c) provides that an application to the Court for leave to file a late notice
of claim with MVAIC must be made within one year of the accrual of the cause of action, the
New York Court of Appeals held in an analogous case that the period during which a court may
grant an extension of the time within which to serve the notice of claim under General Municipal
Law 50-e is tolled during the infancy of the claimant in accordance with CPLR 208. See Cohen
v. Pearl River Union Free Sch. Dist., 51 N.Y.2d 256,414 N.E.2d 639 (N.Y. 1980). Specifically,
Cohen held that "where the time for commencing an action on the claim is tolled under CPLR

208, there will be a concomitant tolling of the time during which late notice of claim may be
served." 51 N.Y.2d at 263; 414 N.E.2d at 643.
Since the notice of claim requirements of General Municipal Law § 50-e are similar to the
notice requirements oflnsurance Law § 5208, at least one court has relied on Cohen in holding
that "the period specified in ... Insurance Law § 5208(c) during which a Court may authorize
service of a late notice of claim upon MVAIC is subject to the tolling provisions of CPLR
§ 208." Daniels by Clarke, 171 Misc.2d at 423,654 N.Y.S.2d at 554. Even assuming this is
correct, however, Plaintiffs would still be barred from moving for late notice of claim now if they
have not already done so. At oral argument, Plaintiffs' counsel admitted that Plaintiffs have yet
to file anything with the MV AIC.
CONCLUSION

For the reasons set forth above, this Court, in its discretion, declines to extend Plaintiffs'
time to serve its frivolous claims on the MV AIC. Plaintiffs' claims against the MVAIC are
dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m). Since Plaintiffs withdrew at oral
argument their request for an extension of time to serve Matron Jane Doe and the Doe Bus

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Manufacturer, Plaintiffs claims against these two defendants are also dismissed without prejudice
pursuant to Fed. R. Civ. P. 4(m).
The Clerk of Court is to enter partial judgment dismissing without prejudice Plaintiffs'
claims against the MVAIC, Matron Jane Doe and the Doe Bus Manufacturer. Since these are the
last three defendants remaining in this action, the Clerk of Court shall close this case.
SO ORDERED.

s/Sandra L. Townes
/sANDRA L. TOWNES
United States District Judge

Dated: June f 0 , 2014
Brooklyn, New York

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