Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants’ Estime and Bonventure’s motion to dismiss pursuant to CPLR §3211(a)(8).Papers NYSCEF Doc.Notice of Motion, Affirmation and Exhibits Annexed 12-2Affirmation in Opposition and Exhibits Annexed 25-26Reply Affirmation 28Supplemental Papers and Exhibits Annexed 30-36DECISION / ORDER Upon the foregoing cited papers, the Decision/Order on this application is as follows:In this action for personal injury and wrongful death arising out of a “pedestrian knockdown” motor vehicle accident on September 5, 2012, defendants Estime and Bonventure, driver and owner of the vehicle respectively, move to dismiss the complaint based upon the expiration of the statute of limitations.An earlier action, commenced on January 22, 2016, before plaintiff Judy Rosado had been appointed Administratrix, was dismissed based upon her lack of standing, without prejudice, by an order dated February 9, 2017. Plaintiff was then appointed Administratrix and she commenced the present action within 6 months of the dismissal, per CPLR §205, on May 11, 2017. Defendants’ answer includes the statute of limitations as an affirmative defense, as is required for this motion by CPLR §3018(b).Defendant Messam has recently appeared by counsel and has not as yet answered the complaint. He has not submitted any papers in response to this motion, nor has he made a motion to dismiss. Plaintiffs have not moved for a default judgment against defendant Messam and the time to do so will expire shortly.Oral argument was held on March 22, 2018 and the motion was adjourned to April 19, 2018 for a certified copy of the certificate of conviction for defendant Estime and a copy of the indictment. On April 19, 2018, the motion and these additional documents were submitted without further argument. The indictment indeed mentions plaintiff’s decedent as the victim of the crime. Without this document, there was no connection between the crime and the decedent, as the certificate of conviction provided in the motion papers does not (of course) state the name of the victim.Defendants contend that although the present action was commenced within the six-month period to re-file under CPLR §205, the initial action was untimely when commenced (citing Markoff v. South Nassau Community Hosp., 61 NY2d 283, 288 [1984]). Defendants contend that the underlying motor vehicle accident occurred on September 5, 2012 and Daniel Rosado died around midnight that day, but the initial action was not commenced until three years and three and a half months later, beyond the three-year statute of limitations for negligence (CPLR §214[5]) and the two-year statute of limitations for wrongful death (EPTL §5-4.1).Defendants also contend that none of the statutory extensions of the statute of limitations for crime victims apply to defendant Estime, as Daniel Rosado’s injury and death did not result from the crime Estime was convicted of, leaving the scene of the accident, but from the accident itself, and that therefore the crime is not the “subject of the action,” as is required by the statutes which extend the statute of limitations.Alternatively, defendants argue that if the court finds that any of the statutory extensions for crime victims applies with regard to plaintiff’s claims against defendant Estime, who was convicted of the crime of leaving the scene of an accident resulting in Daniel Rosado’s death, a class D felony, the extension does not apply to defendant Bonventure, who owned the vehicle Estime was driving but was not charged with a crime, as he is solely vicariously liable (citing Vasquez v. Wood, 18 AD3d 645, 646 [2d Dept 2005], with regards to this issue, effectively reversing 190 Misc2d 427, 430-31 [Sup Ct., Queens County 2001]; Jordan v. Britton, 128 AD2d 315, 320 [4th Dept 1987]).Plaintiff counters that the claim is timely under the statutes that extend the statute of limitations for victims of crimes, that is, CPLR §213-b, EPTL §5-4.1 (2), and/or CPLR §215(8)(a). CPLR §213-b provides that the victim of a crime, or the estate representative of the victim, has seven years to commence an action following a defendant’s conviction of a crime which is the subject of such civil action. EPTL §5-4.1 (2) allows an action for wrongful death to be commenced within one year of the termination of a criminal action against the defendant with respect to the event or occurrence from which the wrongful death action arises. The “termination of the criminal action” has been interpreted to mean the date of sentencing. While plaintiffs also reference CPLR §215(8)(a), which provides a one-year extension of the one-year statute of limitations for the claims enumerated, calculated from the date of the termination of a criminal action “with respect to the event or occurrence from which a claim governed by this section arises,” plaintiff’s claims of personal injury and wrongful death are not claims governed by this one year statute of limitations section of the CPLR.Herein, the record establishes that Estime was convicted of the class D felony of VTL §600.2(A) — leaving the scene of an accident resulting in death, arising out of the September 5, 2012 injuries to Rosado. For the reasons set forth herein, the court finds there is the requisite “causal connection” here, that is, the plaintiff’s action for personal injuries and wrongful death does arise from the same event or occurrence as the criminal conviction, and that CPLR §213-b and EPTL §5-4.1(2), the statutes extending the statute of limitations for crime victims, are applicable. CPLR §213-b applies to the claims of negligence and EPTL §5-4.1 (2) applies to the claims of wrongful death.The “extension” or “saving” statutes provide, in pertinent part, as follows:CPLR §213-b. Action by a victim of a criminal offenseNotwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime.EPTL §5-4.1. Action by personal representative for wrongful act, neglect or default causing death of decedent2. Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.The court’s conclusion is based upon the decisional law interpreting these extension statutes. In a relevant case, Elkin v. Cassarino (248 AD2d 35 [2d Dept 1998]), the Second Department Appellate Division reviewed the legislative history of CPLR 213-b and concluded:“it is clear from the legislative history that CPLR 213-b was intended to be expansive, and to reach the victims of crimes committed in New York State…To give relief to more, rather than fewer, numbers of crime victims…. This broad interpretation is also supported by the few State and Federal cases addressing the reach of this section…The Third Department has stated that the seven-year period of limitation in ‘CPLR 213-b can be invoked when (1) the plaintiff is a crime victim, (2) the defendant has been convicted of a crime, (3) the defendant’s crime is the subject of the civil action, and (4) the plaintiff’s injury resulted from that crime.’ Significantly, the court did not attempt to define “crime” or to limit its definition, as was proposed by the defendant.” [citations omitted]Similarly, Justice Palmieri of Nassau County held in a more recent case, Roitman v. United Artists Theatre Group, LLC (2009 NY Slip Op 30068[U], [Sup Ct, Nassau County 2009]) as follows:the Saving Extension has been liberally construed and applied expansively as it is designed to provide a remedy to crime victims. The Saving Extension does not define “crime”, does not limit the crimes to which it is applicable, and does not limit the term “crime victims”. Thus, the terms crime” and “crime victims” were not intended to be restricted by reference to other statutes such as the Executive Law or as here, the Penal Law. It appears that it is only when there is a lack of causal connection that application of the Saving Extension has been denied. Coggins v. County of Nassau, 2008 U.S. Dist. LEXIS 48239, 2008 WL 2522501, p. 13, (E.D.N.Y. 2008)…The legislative history of the Saving Extension supports an expansive rather than a restrictive interpretation and has been recited in several cases. See e.g., Williams v. Congregation Yetev Lev, 2004 U.S. Dist. LEXIS 25432, 2004 WL 2924490, p.7 (S.D.N.Y. 2004), National Union Fire Ins. Co. of Pittsburgh v. Erazo, 187 Misc2d 194, 197, 721 N.Y.S.2d 720 (Civ. Ct. N.Y. County 2001) and Elkin v. Cassarino, 248 AD2d 35, 680 N.Y.S.2d 601 (2d Dept. 1998). The Saving Extension is not intended to incorporate restrictive definitions, and a broad interpretation is warranted in order to conform to legislative intent id at 38-39. The Saving Extension applies to “all crimes that occur in New York, whether or not the crimes are defined by New York Law or are prosecuted in New York State Courts” id at 41. The focus is on allowing an aggrieved plaintiff to pursue a civil remedy based on the underlying conduct.On the day of the accident, defendant Estime, using a vehicle with defendant Bonventure’s permission, hit plaintiff’s decedent while he was crossing Flatbush Avenue. The plaintiff’s decedent died within hours of the accident. According to the certified Police Report annexed to the plaintiff’s bill of particulars in Exhibit F to the motion, after hitting the decedent, who was then “tossed” to the opposite side of the street, Estime, whose name was not known at that time as he abandoned the vehicle and ran away, then hit a parked car, crossed the yellow line and hit a car traveling on Flatbush Avenue in the opposite direction, which caused that car to hit a parked car. Then, driver Messam allegedly hit plaintiff’s decedent as Messam approached the accident scene from the opposite direction on Flatbush Avenue.Estime was indicted (Ind. No. 6805/13) for violating VTL 600 (2)(a) and (c)(ii), a Class D felony, as well as for several misdemeanors for driving with a suspended license and without a valid license. It is not known if he was initially charged with other crimes, as the criminal complaint is not provided. What is apparent from the indictment and the certified copy of the certificate of conviction provided is that he was not arrested for this crime until almost a year after the accident. It is indeed ironic that he now attempts to hold plaintiff to an inapplicable deadline to sue, when he could not be located to be arrested until August 13, 2013. The certified certificate of conviction states that he was convicted upon a plea of guilty on January 7, 2015, a year and a half later, and was sentenced on January 23, 2015 to one to three years in jail. It must be noted that CPL §1.20 defines the termination of a criminal action as the date of imposition of sentence or some other final disposition. CPL §1.20(16) (c). (Roitman v. United Artists Theatre Group, LLC, 2009 NY Slip Op 30068[U], [Sup Ct, Nassau County 2009]; Dynamic Chemicals, Inc. v. Ackerman Mechanical Services, Inc., 58 AD3d 153, 867 NYS2d 820, 822 [4th Dept. 2008]). The definition in CPL §120.(16)(c) has been applied to CPLR §213-b although it is only specifically referenced in CPLR §215(8) and EPTL §5-4.1(2), as the phrase “termination of the criminal action” is in all three statutes. In this case, the criminal action terminated on defendant’s sentencing date, January 23, 2015.The elements of the crime Estime was convicted of (by reference to the New York Criminal Jury Instructions) are: (1) the defendant was operating a motor vehicle; (2) the defendant knew or had cause to know that personal injury had been caused to another person, due to an incident involving the motor vehicle operated by the defendant; (3) that the defendant did not, before leaving the place where the personal injury occurred, stop and, in the event that no police officer was in the vicinity of the place of the injury, report the incident as soon as physically able to the nearest police station or judicial officer; and (4) that the personal injury involved resulted in death.Not only is the crime that defendant was convicted of the subject of this civil action, but it was the most serious crime that defendant could have been reasonably charged with, considering the facts and circumstances here. The District Attorney selects the appropriate crimes to include in a criminal complaint, and it is not reasonable here to claim that the crime Estime was convicted of is not causally connected to the claims in plaintiff’s lawsuit. To charge a defendant with vehicular manslaughter in the second degree, when he is driving a car and not a truck, the defendant must have been driving under the influence of drugs or alcohol (Penal Law 125.12), something which could not be ascertained here, as Estime was not arrested until eleven months after the accident. Further, that crime is also a Class D felony, and thus the sentence would have been the same. Vehicular manslaughter in the first degree (Penal Law 125.13) requires either the use of drugs or alcohol at the time of the crime or a suspended license at the time of the crime where the suspension is based upon either refusal to submit to a chemical test (pursuant to VTL §1194) or the conviction of a violation of VTL §1192, or other prerequisites that were not applicable to Estime, such as causing the death of more than one person. It is a Class C felony. Defendant could not have been charged with this crime. Aggravated vehicular homicide (Penal Law 125.14) requires the crime of vehicular manslaughter in the second degree plus one of a list of factors, such as if the accident causes the death of one person, there must also be a serious physical injury to another person. This too was not applicable to Estime. Manslaughter in the second degree (Penal Law 125.15), which is a Class C felony, would have been very hard to establish, as it requires the defendant to act “recklessly with respect to a death when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that another person’s death will occur.”1 As interpreted, getting behind the wheel of a car does not qualify as reckless conduct without more, such as use of drugs or alcohol, a car chase, a drag race, excessive speed or some other factor.While vehicular assault in the second degree (Penal Law 120.03), which requires the involvement of drugs or alcohol or knowingly driving with a suspended license, could have been the one defendant was charged with, it is a lesser offense than he was indicted for, as it is a Class E felony which does not require that the victim’s injuries result in death. Assault charges are not generally used when the victim dies from his injuries, as then the homicide and manslaughter charges are used. See Practice Commentary by Hon. William Donnino to McKinney’s Penal Law 120.04-a.In another case, Cavanaugh v. Watanabe (10 Misc3d 143 [Sup Ct Westchester Co 2005), the court was faced with similar facts as here. The plaintiff sued defendant for battery and related causes of action, but the defendant had been convicted of attempted assault. Defendant's attorney argued that the claims asserted did not relate to the crime for which he was convicted. The court disagreed, and statesHowever, CPLR 213-b being a procedural statute is to be liberally construed. McKinney's Consol. Laws of New York, Book 1, Statutes 325. Its purpose, to extend the time a crime victim has to pursue a defendant responsible for the crime, is designed to provide a meaningful remedy to the victim and the statute should, therefore, be read expansively. Elkin v. Cassarino, 248 AD2d 35 (2d Dep't 1998); Vasquez v. Wood, 190 Misc2d 427 (Supreme Ct. Queens 2001). Research discloses that the benefit of CPLR 213-b has been denied only in those cases where there was no causal connection between the crime for which defendant was convicted and the damages sought. Respass v. Dean, 7 AD3d 503 (2d Dep't 2004); Boice v. Burnett, 245 AD2d 980 (3rd Dep't 1997). At bar, however, it is clear that a causal nexus exists between the crime charged, the conviction and plaintiff's causes of action.In conclusion, defendants' argument, that the crime the defendant was convicted of "is unrelated to any injury Plaintiff's decedent, Mr. Rosado, may have sustained in the course of the accident, and is not an element of this civil action, so CPLR §213-b is not applicable," [Affirmation in Support, 25] is not a correct interpretation of this statute. By way of comparison, where the defendant was convicted of not reporting income on his tax return and for filing false expense vouchers with his employer, the court found these crimes did not form the basis of a plaintiff’s claim for defamation. (Boice v. Burnett, 245 AD2d 980, 981 [3d Dept 1997]).This civil action is clearly based on the same conduct as the crime, and the victim of the crime, Rosado, is the same party as the plaintiff in the tort action, which was not the case in Boice v. Burnett. That said, the court finds that, with regard to defendant Estime, CPLR §213-b extends the statute of limitations for the personal injury claims in the complaint and EPTL §5-4.1 (2) extends the statute of limitations for the wrongful death claims in the complaint.The court must next address the branch of the motion which alleges that defendant Bonventure must be dismissed from the action as he was not convicted of any crime and his liability is solely vicarious. While this is not an issue of first impression, the case law is less than clear and the decisions are few.There are only two appellate decisions that the undersigned could locate on this point. They both hold that a defendant whose liability is purely vicarious is entitled to dismissal where the statute of limitations has run, as the statutory extensions in CPLR §213-b and EPTL §5-4.1(2) only prevent dismissal of the claims against the party who was convicted of the crime.In Jordan v. Britton (128 AD2d 315 [4th Dept 1987]), relied on by defendants, the crime was a fatal shooting, and the defendant was a 7-Eleven store employee who apparently chased a shoplifter out of a store while holding a gun. Apparently, a scuffle ensued and the gun went off. He claimed it was an accident, but pled guilty to manslaughter. The store owner was sued as a party allegedly vicariously liable. There were no negligence claims, only wrongful death claims. The issue of the statute of limitations was raised, and the store owner claimed the suit against him was barred by the statute of limitations as he was not the person convicted of the crime. This was one of the first cases appealed after the extension statute, EPTL §5-4.1 (2), was passed. The Fourth Department Appellate Division agreed with the store owner, and explains that since a wrongful death action is in derogation of the common law, the wrongful death statute must be strictly construed. Therefore, as the statute clearly says it applies to the defendant convicted of the crime and nobody else, that is the only possible interpretation. The opinion concludes that if the Legislature intended otherwise, they should amend the statute to include those vicariously liable.In Vasquez v. Wood (190 Misc2d 427 [Sup Ct Queens County 2001], reversed in part by 18 AD3d 645 [2d Dept 2005]), also relied upon by defendants, the decedent died in a car accident while a passenger. The car was owned by a leasing company (Queensboro Toyota), leased to the defendant’s father and used by the defendant Wood with his father’s permission. The leasing company would have no liability now, under the Graves Amendment (49 USC §30106), but it had not been enacted at that time (1993), and so the company moved to dismiss the complaint on the ground that the statute of limitations had run. The driver was convicted of criminally negligent homicide (he was intoxicated). The Supreme Court determined that CPLR §213-b was intended to be expansive “to reach the victims of crimes.” The judge opined “the purpose of section 388 is to protect innocent victims of automobile accidents by assuring that there is a financially responsible person to answer to damages.” The court concluded that the seven-year extension statute (CPLR §213-b) should apply to the vehicle owner. The Second Department disagreed, and stated that CPLR §213-b doesn’t apply to wrongful death claims, as that cause of action is covered by the EPTL, and in negligence claims, it doesn’t apply to the vehicle owner (here, Queensboro Toyota) as it was not convicted of the crime which gave rise to the action. Thus, the denial of dismissal to the vehicle owner for the personal injury claims was reversed. However, the court found that the wrongful death cause of action in Vasquez was asserted timely and no extension statute needed to be applied, (there was a toll for the distributee’s infancy) so both the owner and the driver were proper defendants as to that claim.After Jordan v. Britton and Vasquez v. Wood, New York had appellate authority that neither EPTL §5-4.1 (2) nor CPLR §213-b may extend the statute of limitations against a defendant whose liability is solely vicarious if he or she was not the person convicted of the crime that is the subject of the civil action. Several Supreme Court decisions subsequently followed this holding. See e.g. Ross v. Saravanos, 2011 NY Slip Op 31310(U).In Gomez v. Singh (309 AD2d 620 [1st Dept 2003]), the First Department clarifies that an owner cannot be liable for the intentional acts of a person using his vehicle with his permission. In this case, the driver was driving a taxi and after an argument with a passenger, intentionally drove onto the sidewalk intending to hit the passenger, but he hit another person. Even though there was no issue of the statute of limitations with regard to commencing the action, as the plaintiff had only pled the usual claims of negligence for an automobile case, the court states that the application of CPLR 213-b allowed the plaintiff to amend the complaint to add additional claims for intentional torts against the defendant, even after the regular statute of limitations had run (see also Sebrow v. Joe & Mike Taxi, Inc.,157 AD3d 590 [1st Dept 2018]).The federal courts have weighed in as well. In Bayles v. Manns (2006 US App LEXIS 2728 [2d Cir]), the court describes the facts in Gomez v. Singh, and states that in New York, courts have “adopted the prevailing view that once intentional offensive conduct has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently.” Therefore, in this case, as in Gomez v. Singh, the vehicle owner was entitled to dismissal of the complaint, as the conduct of the driver was intentional, and VTL §388 only imposes vicarious liability on the vehicle owner for negligent conduct, even where the plaintiff was not the person the driver intended to harm.There is no conclusion that may be reached herein, unless and until there is an amendment to the applicable statute, other than that a vehicle owner is entitled to dismissal of an action where the conduct alleged, even if by a permissive user, was intentional and not negligent.Further, a vehicle owner who permits his or her vehicle to be used by someone who is then convicted of a crime arising from the use of the vehicle, is entitled to dismissal of a civil action which is subsequently commenced against him or her if the statute of limitations has run, even if the driver’s conduct is negligent and not intentional, as the statutory extensions of the statute of limitations for crime victims do not extend to a party whose liability is purely vicarious.2In conclusion, the plaintiff had a year from the date of Estime’s sentencing to commence an action for wrongful death under EPTL§5-4.1(2) and she did so. She had seven years under CPLR §213-b from the date of Estime’s sentencing to commence an action for personal injury in her capacity as estate representative, and she has done so. With regard to defendant Bonventure, the applicable statutory extensions of the statute of limitations do not apply, so the prior action, commenced January 22, 2016, was commenced too late as to this defendant.Accordingly, the motion is denied as to defendant Estime and granted as to defendant Bonventure. The complaint and any cross claims are dismissed as against defendant Bonventure.The parties shall attend a Preliminary Conference in the Intake Part on May 30, 2018 to chart the course of their discovery. Plaintiffs are directed to serve a copy of this order on the Intake Park Clerk so the conference will be placed on the calendar.This shall constitute the decision and order of the court.Dated: April 30, 2018
