In April, 2007, the Appellate Division, Fourth Department, ruled in the case of Donna Fordham-Coleman v. National Fuel Gas Distribution Corporation, on several issues appealed, including the timeliness of suit, as related to the date of death.
Velma Arlene Fordham, age 58, froze to death because her apartment's gas service had been cut off during a major lake-effect snowstorm in Buffalo, NY. Her body was found on February 19, 2001. The Plaintiff commenced suit on February 18, 2003, apparently in compliance with EPTL 5-4.1[1], a wrongful death cause of "action must be commenced within two years after the decedent's death".
Defendant National Fuel moved for summary judgment dismissing the wrongful death cause of action as time barred, because their expert concluded, based on data concerning the temperatures in February, 2001, and evidence that Velma Fordham had last been seen alive in January, 2001, that her death had occurred two to three weeks prior to the date her body was discovered on February 19, 2001.
The Erie County Chief Medical Examiner testified at deposition that he could not determine an approximate date of death, but it was long enough for her to start to undergo decompositional changes on the date she was found.
The Supreme Court granted National Fuel's summary judgment on the wrongful death cause of action.
Relying on the death certificate, the Appellate Division reversed the lower court, ruling that National Fuel had not met its burden of establishing as a matter of law that the limitations period had run.
Plaintiff commenced suit within two years of the decedent's death as set forth on the death certificate (by one day...). "A certified copy of the record of a death shall be prima facie evidence in all courts and places of the facts therein stated" (Public Health Law ยง4103[3]). The death certificate unequivocally and unqualifiedly lists the date of death as '02/19/2001.' There was no indication that the notation 'Found' above the time listed as the time of death refers to the date of death."
In other words, a smart defense attorney figured out that it was likely that suit was NOT commenced within two years of the date of death. The Appellate Division was going the allow "the trier of the facts", a jury, make the decision on that issue.
What happened here was that Plaintiff's attorneys should have commenced suit long before this issue could be raised. Failing to meet statute of limitations is an oft litigated subject in tort matters. In this case, to be the safe side, suit should have been begun in late December, as Velma had been seen alive in January.
Whatever the reason for not starting suit sooner, a time, resource and money consuming trip to the Appellate Division was the result. Plaintiff is still not clear of this issue: a jury would still need to be convinced about the date of death...
And the suit that was begun in February, 2003, was still not near resolution by April, 2007.
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