Petitioner's decedent, John Otto Heidel, was murdered on October 8, 1987. Almost two decades later, on April 6, 2006, two former members of the New York City Police Department, Louis Eppolito and Stephen Caracappa, were convicted by a federal jury of racketeering conspiracy, based in part on their role in Mr. Heidel's murder. (See United States v Eppolito, 436 F Supp 2d 532 [EDNY 2006].) On May 31, 2006, Petitioner served a notice of claim upon the City of New York (followed by an amended notice on June 5, 2006), seeking damages for Mr. Heidel's wrongful death and personal injuries. With this Petition, Mr. Heidel's daughter and personal representative seeks an order deeming as timely the notices of claim previously filed, or granting her leave to file late notice of claim. (See General Municipal Law § § 50-e[1], 50-e[5], 50-i.)

For purposes of both the notice of claim condition (see General Municipal Law § 50-e[1]) and the statute of limitations (see id., § 50-i), it is important to recognize that Petitioner's claim for wrongful death and the claim for personal injuries, including conscious pain and suffering,

are "materially separate and distinct" (see Ratka v St. Francis Hospital, 44 NY2d 604, 609 [1978].) General Municipal Law § 50-e(1)(a) provides that, "[i]n any case founded upon tort . . . the

notice of claim shall . . . be served . . . within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the [*2]decedent's estate." General Municipal Law § 50-i(1) requires the timely service of a notice of claim as a condition to any action or proceeding "for personal injury, wrongful death or damage to real or personal property," and that the action or proceeding "be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death."

With respect to the claim for personal injuries, the notice of claim was required to be served within 90 days after the claim arose, that is decedent's death on October 8, 1987, and any application for leave to serve late notice of claim, or to deem the 2006 notices of claim as timely served, was required to be made within the one-year-and-ninety-day statute of limitations. (See General Municipal Law § 50-e[5]; Miller v County of Sullivan, 36 AD3d 994, 995 [3d Dept 2007]; Mack v City of New York, 265 AD2d 308, 309 [2d Dept 1999]; Jae Woo Yoo v New York City Health & Hosps. Corp., 239 AD2d 267, 267 [1st Dept 1997].) Unless, therefore, there is some basis for tolling the one-year-and-ninety-day statute of limitations, the application for leave to serve late notice on the personal injuries claim comes too late.

With respect to the claim for wrongful death, since Petitioner did not receive letters of administration until January 12, 2007, it is arguable that the 2006 notices of claim constitute compliance with General Municipal Law § 50-e(1)(a). A notice of claim might validly be served by a person who is one of the next of kin to be benefitted by a wrongful death action (see Winbush v City of Mount Vernon, 306 NY 327, 334 [1954]), even before the 90-day period begins to run (see McKune v City of New York, 19 AD3d 308, 309-10 [1st Dept 2005].) But there is, in any event, "an outside time limitation of two years after the happening of the death'." (See Miller v County of Sullivan, 36 AD3d at 996 [quoting General Municipal Law § 50-i].) And an application for leave to serve late notice must be made within the two-years limitations period. (See Matter of Rasmussen v Nassau County Medical Center, 181 AD2d 679, 679 [2d Dept 1992].) Again, unless there is a basis for tolling the two-year statute of limitations, Petitioner's application for leave to serve late notice of claim on the wrongful death claim comes too late.

Petitioner attempts to find a basis for a tolling of the statutes of limitations in CPLR 213-b. That statute provides that "an action by a crime victim, or the representative of a crime victim, . . . may be commenced to recover damages from a defendant . . . convicted of a specified crime . . . which is the subject of such action for any injury or loss resulting therefrom within ten years of the date the defendant was convicted of such specified crime." The "specified crimes" include the predicate crime of murder that the federal jury found had been committed by former police officers Louis Eppolito and Stephen Caracappa. Because the City does not argue to the contrary, the Court will assume that CPLR 213-b is a tolling provision that can extend the statutes of limitations of General Municipal Law § 50-i (1), and that the federal jury's verdict on the predicate crime of murder can support application of the toll, even though the district court, applying the applicable statute of limitations, ordered a judgment of acquittal as to the racketeering conspiracy charge based, in part, on the murder. (See United State v Eppolito, 436 F Supp 2d at 576-77.)

The Court will also assume, although there appears little doubt, that CPLR 213-b would [*3]support the tolling of the statutes of limitations for an action against Eppolito and Caracappa for the wrongful death and personal injuries of Petitioner's decedent. But Eppolito and Caracappa are not defendants here, and the City of New York, which is a defendant, has not been "convicted" of any crime. If CPLR 213-b is applied in accordance with the plain meaning of its terms (see Desiderio v Ochs, 100 NY2d 159, 169-72 [2003]), it cannot toll either the one-year-and-ninety-day or the two-year limitations periods applicable to Petitioner's claims against the City.

Petitioner argues, however, for a broader than literal meaning of CPLR 213-b, and "appellate courts in this State have often found that a broad interpretation of a statute is warranted in order to conform to the legislative intent in enactment thereof" (see Elkin v Cassarino, 248 AD2d 35, 38 [2d Dept 1998].) It requires no extensive review of legislative history to know that the purpose of the statute is to provide greater opportunity for crime victims to recover damages. (See id., at 39.) Petitioner contends that, consistent with the statutory language, the legislative intent would be furthered by a tolling of the statutes of limitations for an action against the City under the circumstances presented here.

The primary factual allegations underlying Petitioner's claims against the City are that officers Eppolito and Caracappa were privy to confidential information by reason of their employment, including the identity and activities of confidential informants like Petitioner's decedent, John Otto Heidel; that confidential information about Mr. Heidel was given to members of organized crime; and that Mr. Heidel was murdered by the officers, or members of organized crime with the officers' assistance. (See Amended Notice of Claim, dated June 1, 2006, ¶ 3.)

The 2006 notices of claim and Petitioner's papers on this application suggest a number of grounds on which the City's liability might rest, not necessarily unrelated: that the City was negligent in the "hiring, training, supervision and retention of officers Eppolito and Caracappa (see id., ¶ 2); that "liability can be imputed to the City of New York upon a showing that they (sic) failed to properly monitor the officers (sic) actions to ensure that the integrity of the confidential informant status of individuals was properly protected," and "failed to institute departmental measures to prevent . . . or detecting (sic) . . . a breach of the confidentiality of the information regarding confidential informants" (see Affirmation, ¶ ¶ 24, 25); that the City is vicariously liable for the actions of officers Eppolito and Caracappa, and "provided [them] with the means and opportunity that ultimately culminated in the death" of Mr. Heidel (see id., ¶ ¶

35, 36); and that the City "owed Mr. Heidel a special duty to protect his life and not disclose

his status as a confidential informant to those who would murder him" (see Reply Affirmation,

¶ 22.)

The Court assumes for purposes of this application that the 2006 notices of claim may fairly be read to include all of the grounds for liability alleged by Petitioner. This application is not accompanied by a proposed notice of claim, as required by the statute permitting the application (see General Municipal Law § 50-e[7]), and, therefore, can only be granted to the extent of deeming the 2006 notices timely served. [*4]

Although "[o]rdinarily, the courts will not delve into the merits of an action on an application for leave to serve and file a late notice of claim," "it is an improvident exercise of discretion to grant an application where . . . the underlying action is patently meritless." (Matter of Brown v New York City Hous. Auth., 39 AD3d 744, 745 [2d Dept 2007].) The City does not argue that Petitioner's claims are "patently meritless," and, therefore, nothing in this opinion may be understood as determining the merits of the claims.

Relying primarily on the First Department's decision in Alford v St. Nicholas Holding Corp. (218 AD2d 622 [1st Dept 1995]), which applied CPLR 215(8), a provision arguably similar to CPLR 213-b, Petitioner contends that CPLR 213-b will toll the running of the statute of limitations against a person who would be vicariously liable for the acts of a criminal defendant, even though that person was not a defendant in the criminal proceeding. CPLR 215(8) provides that where "a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed" by the one-year statute of limitations arises, including assault and battery, "the plaintiff shall have at least one year from the termination of the criminal action . . . in which to commence the civil action." (See CPLR 215[8][a].) With respect to certain specified crimes, none of which are applicable here, the plaintiff is given "at least five years from the termination of the criminal action" to commence the civil action. (See CPLR 215 [8][b].) Although not involved in Alford, a provision in the Estates, Powers and Trusts Law gives the personal representative of a decedent "at least one year from the termination of [a] criminal action" to bring a civil action against the "same defendant" in the criminal action, without limitation as to the crime. (See EPTL § 5-4.1[2].)

In Alford, the First Department held that CPLR 215(8) applies to a "victim's cause of action against an employer based upon respondeat superior," as well as to an action against the "wrongdoer." (See Alford v St. Nicholas Holding Corp., 218 AD2d at 622; see also Gomez v Singh, 309 AD2d 620, 620-21 [1st Dept 2003].) In so holding, however, the court expressly recognized, and declined to follow, decisions to the contrary in the Second and Fourth Departments. (See Alford v St. Nicholas Holding Corp, 218 AD2d at 622.)

Specifically, in Villanueva v Comparetto (180 AD2d 627 [2d Dept 1992]), the Second Department held that, "[a]lthough CPLR 215(8) extended the Statute of Limitations against [the president of a corporation], that provision was inapplicable against [the corporation], since the latter was not a party to the criminal proceedings" (see id., at 629.) In Jordan v Britton (128 AD2d 315 [4th Dept 1987]), the Fourth Department held that "EPTL 5-4.1(2) is limited in its application to one against whom criminal proceedings have been commenced and does not apply to others regardless of their relationship to the wrongdoer" (see id., at 320.)

Whatever this Court may think of the respective positions of the First Department on the one hand, and the Second and Fourth on the other, this Court is bound by the decisions of the Second. (See Stewart v Volkswagon of America, Inc., 181 AD2d 4, 7 [2d Dept 1992], rev'd on other grounds 81 NY2d 203 [1993].) The Second Department confirmed its view earlier this year in Matter of Pipitone v City of New York (38 AD3d 557, 558 [2d Dept 2007]), a case that, in [*5]some respects, bears a strong resemblance to this one, and that will be further discussed below.

The only question that remains to be considered with respect to CPLR 213-b is whether it is materially different in its terms from CPLR 215(8) and EPTL § 5-4.1(2), so as to warrant a different conclusion as to its applicability to a person vicariously liable for the acts of a wrongdoer prosecuted for a crime. Although CPLR 215(8) and EPTL § 5-4.1(2) apply to a civil action against the "same defendant" in the criminal proceeding, while CPLR 213-b applies to a civil action against the "defendant convicted" in the criminal action, the difference is immaterial, at least with respect to the persons subject to the tolling. (Neither CPLR 215[8] nor EPTL § 5-4.1[2] requires a conviction in the criminal proceeding, unlike CPLR 213-b.) The only Second Department decision that addresses the scope of CPLR 213-b in this respect states that "[t]he appellant was not convicted of any crime as a result of the accident that gave rise to this action, and CPLR 213-b, by its plain terms, does not apply." (See Vasquez v Wood, 18 AD3d 645, 646 [2d Dept 2005].) No facts are given, but the court's citation to Villanueva v Comparetto (180 AD2d 627) and Jordan v Britton (128 AD2d 315) clearly signals that CPLR 213-b, like CPLR 215(8) and EPTL § 5-4.1(2), does not extend to persons who might be vicariously liable for the acts of the convicted defendant, in the Second Department at least.

If CPLR 213-b is not available to Petitioner on her claims grounded on the City's alleged vicarious liability for the acts of officers Eppolito and Caracappa, it would not be available on her claims based on allegations of the City's own negligence. Not only was the City not convicted of anything in the federal action, the elements of any negligence cause of action against it were not the "subject of" the criminal action, as required by CPLR 213-b. If, therefore, the statutes of limitations found in General Municipal Law § 50-i have been tolled with respect to any of Petitioner's claims, the toll must come from someplace other than CPLR 213-b.

Petitioner asserts that, at the time of her father's murder, she was told by the police that he "was the victim of a mob hit." (See Verified Petition, ¶ 5.) Her father had told Petitioner that "he was working with the F.B.I. and wearing wires"; that he "was in trouble," and had been approached by "two crooked cops" who had attempted to intimidate him; and that "he knew he was being followed and . . . was genuinely afraid for his life." (See id., ¶ ¶ 7, 8.) Decedent "never specified" whether "he was referring to corrupt F.B.I. agents, New York City Police Officers, or anyone (sic) other type of law enforcement official." (See id., ¶ 8.)

Until "approximately 1991," Petitioner would inquire of the police about the status of the investigation into her father's death, but was "continually advised . . . that the matter was open and that there were no new leads'." (See id., ¶ 6.) It was not until March 2006 that Petitioner was advised by an F.B.I. agent that the agency "had reason to believe that Stephen Caracappa and Louis Eppolito were involved in [her] father's death." (See id., ¶ ¶ 10, 11.)

It is well-settled law, with exceptions not applicable here, that "mere ignorance or lack of discovery of the wrong is not sufficient to toll the statute of limitations." (See General Stencils, Inc. v Chiappa, 18 NY2d 125, 127 [1966].) But there is a difference between an assertion that [*6]"the statute has been tolled, or that the cause of action did not accrue until discovery" and the "doctrine of equitable estoppel," which prevents a defendant from asserting the statute "because of the defendant's affirmative wrongdoing and concealment." (See id.) For purposes of an estoppel against the City here, it is the City's "affirmative wrongdoing and concealment" that is at issue, and not that of officers Eppolito and Caracappa (see Affirmation, ¶ ¶ 27, 28.)

In Matter of Pipitone v City of New York (38 AD3d 557), the Second Department rejected the petitioner's contention, among others, that the City should be equitably estopped from relying on the statute of limitations in General Municipal Law § 50-i (1) (see id., at 557-58.) The Second Department memorandum opinion reveals none of the facts of the underlying claim, other than that it related to the death of the petitioner's son. The opinion on the order appealed from, the unpublished opinion of the Hon. Martin M. Solomon, reveals both important similarities and differences between Pipitone and this case. There the petitioner's son, Nicholas Guido, was also murdered, and the racketeering conviction of officers Eppolito and Caracappa was also based in part on their role in that murder. But the Nicholas Guido who was killed was not the Nicholas Guido who was the intended victim, and it appears that neither the "right" Nicholas Guido nor the murdered "wrong" Nicholas Guido was a government informant.

The Second Department held on the record before it that "[t]he petitioner produced no evidence indicating that the [City's] personnel who investigated the death of her son either made any affirmative, knowingly false misrepresentation to her upon which she reasonably relied in foregoing the commencement of a timely lawsuit . . . , or intentionally concealed relevant information from her prior to the expiration of the limitations period, notwithstanding the existence of a fiduciary relationship requiring that such information be disclosed to her." (See id.)

Here, too, there is no evidence that the City made any "affirmative, knowingly false misrepresentation" to Petitioner. The statement that her father's death was a "mob hit" was essentially true; indeed, the murder was part of the pattern of racketeering activity of which Eppolito and Caracappa were convicted. There is no evidence that the statements through 1991 that the "matter was open" and there were "no new leads" were not true. Judge Jack B. Weinstein's review of the extensive evidence at the federal trial suggests that investigators may not have been told the identity of the "two dirty cops" until 1994 or received confirmation until much later. (See United States v Eppolito, 436 FSupp2d at 550, 553.) Although there was documentary and other "confirming evidence" of the officers' "access to information and ability to carry out the various crimes of which they were accused" (see id., at 548), there is nothing in the record here to suggest that the investigators, in particular the New York City Police Department, knew of the officers' involvement in Mr. Heidel's death in 1991 when Petitioner made her last inquiry. Even then, the statute of limitations had long since expired.

If it is assumed that Petitioner's father was acting as an informant to the Police Department, rather than the F.B.I., or that it makes no difference, it may be that the resulting relationship gave rise to a special duty on the part of the City (see Schuster v City of New York, 5 [*7]NY2d 75, 80-86 [1958]; Kubecka v State of New York, 249 AD2d 513, 514 [2d Dept 1998]) that would include providing information relating to the criminal and civil responsibility for Mr. Heidel's death (see Zumpano v Quinn, 6 NY3d 666, 675 [2006]; Matter of Pipitone v City of New York, 38 AD3d at 557-58; Doe v Holy See [State of Vatican City], 17 AD3d 793, 795 [3d Dept 2005].)

Even assuming, however, that the City "concealed" from Petitioner the involvement of officers Eppolito and Caracappa in her father's death, and the City's own potential liability as alleged by Petitioner, Petitioner provides no evidence of concealment after 1991, when she ceased to make her inquiries. (See id., at 796.) Generally, "[a] wrongdoer is not legally obligated to make a public confession, or to alert people who may have claims against it, to get the benefit of a statute of limitations." (See Zumpano v Quinn, 6 NY3d at 675.) This Court is not aware of any authority that would have required the City to affirmatively contact Petitioner to apprise her about developments in any continuing investigation.

It is essential, moreover, to the application of equitable estoppel that the claimant "establish that subsequent and specific actions by [the defendant] somehow kept [the claimant] from timely bringing suit." (See id., at 674; see also Simcuski v Saeli, 44 NY2d 442, 449 [1978] ["reliance . . . and justification for such reliance"].) Here, unlike the petitioner in Matter of Pipitone (38 AD3d 557), at the time of the decedent's death Petitioner probably knew at least as much, if not more, about the circumstances than the police.

"If a plaintiff possesses sufficient knowledge of the possible existence of a claim, he or she is under a duty to make inquiry and ascertain all relevant facts before the statute of limitations expires." (Estate of Boyle v Smith, 15 AD3d 338, 339 [2d Dept 2005], aff'd 6 NY3d 666 [2006].) What knowledge can be deemed "sufficient" so as to preclude an equitable estoppel might be conceived as the difference between "basic facts" and "evidentiary details confirmatory of the basic facts." (See Augstein v Levey, 3 AD2d 595, 598 [1st Dept 1957], aff'd 4 NY2d 791 [1958].) An example somewhat analogous to the claim here is a claim against a church diocese for the sexual misconduct of its priest. Courts have declined to find an equitable estoppel because the claimants possessed knowledge of the facts underlying their intentional tort claims from the time of the offense, and "were . . . aware that the priests were employees of the dioceses and could have brought actions against the dioceses, or at least investigated whether a basis for such actions existed." (See Zumpano v Quinn, 6 NY3d at 674; see also id., at 676; Mars v Diocese of Rochester, 6 AD3d 1120, 1121 [4th Dept 2004].)

Here, Petitioner knew that her father was a government informant; that he had been threatened by "two crooked cops," and was afraid; and that the police considered his death a "mob hit," which would necessarily suggest a connection to his activity as an informant. "It might even be held, without identification of [his] assailant, that the probability [was] so great of his having been shot by reason of his disclosures . . . , that a question of fact would be created on this issue." (See Schuster v City of New York, 5 NY2d at 80.) A claimant under pressure from General Municipal Law § § 50-e and 50-i might legitimately assert a claim against the City based [*8]upon the facts known to Petitioner at the time, even without the identity of the "two crooked cops."

That is not to suggest that the identification of officers Eppolito and Caracappa was immaterial to any claim Petitioner might have against the City. Four years before Petitioner's decedent's death, Eppolito was suspended on suspicion that he was divulging confidential information to a member of organized crime (see Affirmation, ¶ ¶ 33, 34); and Caracappa was a member of the major case squad's organized crime homicide unit, with particular access to confidential information (see United States v Eppolito, 436 F Supp 2d at 548.) As significant as these facts might be, however, it cannot be said that they were necessary for Petitioner to pursue a claim, any more than the lack of information about the sexual misconduct of priests and the dioceses' active efforts to conceal it have been sufficient to establish an estoppel in those cases (see Zumpano v Quinn, 6 NY3d at 675-76.)

Having failed to establish any tolling of the applicable statutes of limitations or any estoppel to preclude their application, Petitioner's application is time-barred.

The application for leave to serve late notice of claim is denied, and the Petition is dismissed.

August 21, 2007___________________

Jack M. Battaglia

Justice, Supreme Court