Allen v. N.Y.C. Transit

Full title: Ronnie ALLEN, Appellant, v. NEW YORK CITY TRANSIT, Respondent.

Court: Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.

Date published: Dec 8, 2015

2015 N.Y. Slip Op. 51801 (N.Y. App. Term 2015)

29 N.Y.S.3d 846

Opinion

2014-1494 K C

12-08-2015

Ronnie Allen, Appellant, v. New York City Transit, Respondent.

PESCE, P.J., WESTON and ALIOTTA, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 8, 2014. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

On or about October 1, 2011, plaintiff served a notice of claim upon defendant, alleging that she had sustained personal injuries on August 15, 2011, when she had slipped on a puddle of water at a subway station in Manhattan. An oral examination of plaintiff, pursuant to Public Authorities Law § 1212 (5), was conducted on or about October 21, 2011. Plaintiff thereafter commenced this action on or about August 27, 2013. After serving its answer containing the affirmative defense of statute of limitations, defendant moved to dismiss the complaint, on the ground that plaintiff had failed to commence this action within the one year and 90-day statute of limitations provided in Public Authorities Law § 1212 (2).¹ Plaintiff opposed the motion, arguing that she did not commence the action earlier since she had been in settlement discussions. The Civil Court granted defendant's motion and dismissed the complaint.

1 Although the motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), as it was made after joinder of issue, it was actually a motion for summary judgment, pursuant to CPLR 3212 (see Impastato v De Girolamo, 95 AD2d 845 [1983]).

Public Authorities Law § 1212 (2) states, in pertinent part, that except in "an action for wrongful death, an action against the authority founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based." Here, there is no dispute that plaintiff commenced this action after the statutory time period had expired. Moreover, plaintiff failed to show that she had had any settlement negotiation discussions with any person with authority to settle on behalf of defendant and, in any event, the possibility of settlement does not operate as a stay to extend the limitations period (see Matter of Noisette v New York City Tr. Auth., 20 AD2d 925 [1964]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 08, 2015