Opinion
No. 100331/2007.
2012-09-13
Alison BOLES, Plaintiff, v. The CITY OF NEW YORK, Metropolitan Transit Authority (MTA), MTA Capitol Construction, Granite Construction, Inc., Schiavone Construction Company and New York Transit Authority, Defendants.
John Walshe & Associates, New York, for Plaintiff. Smith Mazure Director Wilkins Young & Yagerman, P.C. by Marcia K. Raicus, Esq., Mark D. Levi, Esq., New York, for defendants Metropolitan Transportation Authority, s/h/a Metropolitan Transit Authority; MTA Capital Construction, Inc., s/h/a MTA Capitol Construction; and the New York City Transit Authority, s/h/a New York Transit Authority.
John Walshe & Associates, New York, for Plaintiff. Smith Mazure Director Wilkins Young & Yagerman, P.C. by Marcia K. Raicus, Esq., Mark D. Levi, Esq., New York, for defendants Metropolitan Transportation Authority, s/h/a Metropolitan Transit Authority; MTA Capital Construction, Inc., s/h/a MTA Capitol Construction; and the New York City Transit Authority, s/h/a New York Transit Authority.
Greenblatt Lesser LLP by Gershon D. Greenblatt, Esq., New York, for Schiavone Construction Company, Inc./Granite Halmar Construction, Inc., a joint venture s/h/a Granite Construction Inc. and Schiavone Construction Company.
MICHAEL D. STALLMAN, J.
Defendants Metropolitan Transportation Authority, sued herein as “Metropolitan Transit Authority” (MTA), MTA Capital Construction, Inc., sued herein as “MTA Capitol Construction,” and the New York City Transit Authority, sued herein as “New York Transit Authority” (N.Y.CTA) move for summary judgment dismissing the complaint as against them on the ground that the notices of claim fail to provide adequate notice to them of the nature of the claim and plaintiff's theories of liability.
Plaintiff opposes the motion. Defendant Schiavone Construction Company (Schiavone) opposes the branch of the motion seeking dismissal of all claims and cross claims against the movants.
BACKGROUND
On or about May 19, 2006, the MTA, NYCTA, and MTA Capital Construction received notices of claim from plaintiff. Plaintiff's notices of claim identically state, in pertinent part:
“2. The nature of the claim:
COLLAPSED EXCAVATION SITE BURYING ARCHAEOLOGIST CAUSING FRACTURES OF THE PELVOUS [ sic ] AND RIGHT GREAT TOE AND RELATED LIGAMENT MUSCLES, TENDONS, ARTERIES, VEINS AND BLOOD VESSELS
3. The time when, the place where and the manner in which the claim arose:
AT APPROXIMATELY 11 PM ON FEBRUARY 24, 2006 AT THE CENTRAL PORTION OF BATTERY PARK NEAR STATE STREET PLAZA AT THE [ sic ] OF THE ARCHEOLOGICAL DIG/SUBWAY EXCAVATION, PLAINTIFF WAS AN ARCHE[O]LOGIST HIRED TO ENSURE THAT NO DAMAGE WAS SUFFERED BY THE ARTIFACTS AS A RESULT OF THE EXCAVATION. WHILE IN THE EXCAVATED TRE[NCH] CONDUCTING HER EXAMINATION, THE WALL CREATED BY THE EXCAVATION COLLAPSED BURYING THE CLAIMANT ARCHEOLOGIST.
4. The items of damage or injuries claimed are (do not state dollar amounts)
1. SIX FRACTURES OF THE PELVIS;
2. FRACTURE OF THE DISTAL PHALANX OF THE RIGHT GREAT TOE;
3. LEFT ACETABULAR FRACTURE;
4. RIGHT NASAL BONE FRACTURE;
5. TEAR, STRAINING AN[D] SPRAINING OF RELATED LIGAMENTS.”
(Raicus Affirm., Ex A.) It is undisputed that, after the notices of claim were received, plaintiff did not appear before the MTA nor the NYCTA for a hearing pursuant to Public Authorities Law § 1212(5) or § 1276(4).
“[T]here is no prohibition in the Public Authorities Law to the commencement of an action until compliance with a demand for an examination.” (Cespedes v. City of New York, 301 A.D.2d 404, 404 [1st Dept 2003].) It is not clear from the record on this motion whether the MTA or NYCTA demanded that plaintiff appear for a statutory hearing.
On January 9, 2007, plaintiff commenced this action. The complaint states, in pertinent part:
“B. THE CAUSE OF ACTION
9. On February 24, 2006 at or about 11 P.M., plaintiff, an archeologist, was working at the South Ferry subway construction site owned, maintained, controlled, operated, constructed, supervised and overseen by defendants documenting archeology stones used as a wall in apparently [re [ sic ] colonial times by Dutch settlers for her employer when the excavation site collapsed burying her and causing serious injuries....
10. Defendants were negligent in the maintenance, control, operation, construction, supervision and oversight of the construction site in that they failed to maintain sufficient safety precautions such as supports, shavings, wallings, and others.”
(Raicus Affirm., Ex C.) On August 21, 2007, MTA and NYCTA impleaded plaintiff's employer, third-party defendant Dewberry–Goodkind, Inc.
In a Demand for a Bill of Particulars dated July 27, 2007, MTA, NYCTA, and MTA Capital Construction demanded, among other things, particulars as follows:
“12. Set forth the acts or omissions constituting the negligence claimed as against each defendant.
13. If actual or constructive notice is claimed, state the name of the person to whom notice is claimed to have been given....
14. If constructive notice is claimed for how long a time (in minutes, hours, days, weeks, etc., as nearly as may be stated) did the condition exist before the occurrence. If it is alleged that any section of the Labor Law is violated, set forth the exact statutory number of the Labor Law with subdivisions thereof, including any OSHA violations.”
(Raicus Affirm., Ex D.) Plaintiff's counsel served an unverified “Reply to Smith Mazure's Demand for Bill of Particulars”, dated March 19, 2008, stating, in pertinent part:
“12. Failure to provide a safe work environment, safety devices, to advise of the dangerous condition that may have and/or existed and 2 NYCRR § 23–4.1– § 23–4.5; Labor Law § 241, Labor Law § 240, Labor Law 200 and 29 U.S.C. 650 [ sic ], etc., including but not limited to 666, 654.
29 USC 650 does not exist. Plaintiff might have been referring to the Occupational Health and Safety Act, 29 USC 651 et seq.
13. [Omitted]
14. The dangerous condition existed from one minute to one year 12 NYCRR § 23–4.1– § 23–4.5; Labor Law § 241, Labor Law § 240, Labor Law 200; and, 29 U.S.C. 650, etc. including but not limited to 666, 654.”
(Raicus Affirm., Ex H.) Movants maintain that, although plaintiff's “Reply to Smith Mazure's Demand for Bill of Particulars” is dated March 19, 2008, it was not served until August 15, 2008. (Levi Reply Affirm. [5/16/12] ¶ 13.)
I.
As a threshold matter, plaintiff argues that movants did not “submit an affirmative defense particularly disputing the sufficiency of the Notice of Claim.” (Walshe Opp. Affirm. ¶ 8.) This argument is without merit. Movants were under no obligation to plead, as an affirmative defense, plaintiff's failure to comply with the statutory notice of claim requirement. ( See e.g. Barnaman v. New York City Health & Hosp. Corp., 90 AD3d 588, 589 [2d Dept 2011]; Reaves v. City of New York, 177 A.D.2d 437 [1st Dept 1991][“the failure to comply is not an affirmative defense to be asserted by defendants”].)
Plaintiff also claims that the “moving defendant is a bit late in its motion.” (Walshe Affirm. ¶ 11.) However, courts have held that the failure to serve a notice of claim may be raised at any time prior to trial. (Wade v. NYC Health & Hosps. Corp., 16 AD3d 677 [2d Dept 2005]; Frank v. City of New York, 240 A.D.2d 198 [1st Dept 1997].) This rule is applicable here because movants are challenging the adequacy of the notice of claim, which, if found insufficient, would be equivalent to the failure to serve a timely notice of claim.
A.
Turning to the merits, Public Authorities Law §§ 1212(2) and 1276(2) require service of a notice of claim upon NYCTA and the MTA, respectively, that is “in compliance with all of the requirements of section [50–e] of the general municipal law.”
“General Municipal Law § 50—e (2) requires written notice, sworn to by or on behalf of the claimant,' which sets forth the name and post-office address of each claimant, and of his attorney, if any,' the nature of the claim,' the time when, the place where and the manner in which the claim arose' and the items of damage or injuries claimed to have been sustained so far as then practicable.' As we have explained,
[t]he test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate.... Thus, in determining compliance with the requirements of General Municipal Law § 50—e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the [claim]' (Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 [2000] [internal quotation marks and citations omitted] ).
Put another way, the plain purpose' of statutes requiring pre-litigation notice to municipalities is to guard them against imposition by requiring notice of the circumstances ... upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation' [citation omitted].”
(Rosenbaum v. City of New York, 8 NY3d 1, 10–11 [2006].)
As plaintiff points out, “a notice of claim does not have to set forth a precise legal theory of recovery.” (Miller v. City of New York, 89 AD3d 612, 612 [1st Dept 2011].) “The Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim, which must be filed within 90 days of the occurrence.” (DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698 [2d Dept 1992]; cf. Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2d Dept 2008] [in granting leave to serve a late notice of claim, “the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves”].)
However, it is equally well-settled that
“Causes of action for which a notice of claim is required, that are not delineated in the plaintiff's original notice of claim, may not be interposed because [t]he addition of such causes of action which were not referred to, either directly or indirectly in the original notice of claim, would substantially alter the nature of the plaintiff[']s claims.”
(Garcia v. O'Keefe, 34 AD3d 334, 335 [1st Dept 2006] [internal quotation marks and citations omitted]; Manns v. New York City Tr. Auth., 50 AD3d 860, 861 [2d Dept 2008]; Moore v. County of Rockland, 192 A.D.2d 1021, 1023 [3d Dept 1993].) Thus, it would be as if the plaintiff had not served a notice of claim at all-i.e., failed to give notice-of a cause of action that cannot be referred to, either directly, or indirectly, in the original notice of claim.
When a notice of a claim specifically names a cause of action, such as negligence, and the complaint asserts causes of action not specified in the notice of claim, courts have looked at whether the unspecified causes of action and the specified cause of action share “the essential facts necessary to sustain [the unspecified] causes of action.” (Mojica v. New York City Tr. Auth., 117 A.D.2d 722 [2d Dept 1986][“All of the essential facts necessary to sustain causes of action for false arrest, imprisonment and malicious prosecution” did not appear in notice of claim setting forth claims for assault and battery]; Scott v. City of New York, 40 AD3d 408, 409 [1st Dept 2007]; Garcia v. O'Keefe, 34 AD3d at 335 [cause of action for false arrest “cannot be inferred from plaintiff's general assertions of negligence, carelessness and recklessness,' or from her claims of wrongful death and assault and battery”]; Phelps Steel, Inc. v. City of Glens Falls, 89 A.D.2d 652 [3d Dept 1982] [causes of action in conversion, unjust enrichment, tortious interference with plaintiff's common-law copyright, and a cause of action based on the New York State Constitution were not referred to in any way in the original notice of claim referring to a negligence cause of action].) In Scott v. City of New York, the Appellate Division, First Department stated:
“Plaintiff's notice of claim was limited to allegations of assaultive conduct by the police officers and their use of excessive force. There were no allegations, either express or implied, supporting the newly raised causes of action for false arrest and malicious prosecution. Indeed, the factual allegations in the notice of claim do not even mention the fact that plaintiff was subjected to arrest and prosecution. Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed.” '
(40 AD3d at 409 [citation omitted].)
When a notice of a claim specifically mentions negligence, and the complaint also alleges negligence, courts have, for the most part, dismissed a cause of action for negligence based on acts or omissions that cannot be reasonably implied from the statements in the notice of claim. (Sutin v. Manhattan and Bronx Surface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008][notice of claim alleging breach of the duty to provide a safe place to alight did not encompass cause of action based on driver's failure to kneel a bus]; Manns v. New York City Tr. Auth., 50 AD3d 860, 861 [2d Dept 2008] [a claim that the rear wheels of a bus should have had wheel guards substantially altered nature of the plaintiff's claims, where the notice of claim stated that the defendant was negligent in the “ownership, operation, inspection, maintenance, management, control and supervision of its motor vehicle and in failing to keep the vehicle in “proper operating condition”]; Rumyacheva v. City of New York, 36 AD3d 790, 791 [2d Dept 2007] [breach of the duty to provide a safe place to board a bus “was not alleged in the plaintiff's notice of claim, and substantially alters the theory of liability set forth in the notice of claim”]; Calix v. New York City Tr. Auth., 14 AD3d 583, 584 [2d Dept 2005][the court erred in permitting the plaintiff to present evidence at trial suggesting that the defendant was negligent in failing to provide adequate lighting at the site of the plaintiff's accident]; Chieffet v. New York City Tr. Auth., 10 AD3d 526 [1st Dept 2004] [“broken stairway” theory not set forth in a notice of claim stating that a “slippery condition” existed due to “water running on the steps”]; Kane v. Triborough Bridge & Tunnel Auth., 8 AD3d 239 [2d Dept 2004] [negligence in failing to install a median barrier or certain warning signs on the bridge substantially altered the nature of plaintiff's claim that defendant negligently maintained the bridge's metal grating]; Mahase v. Manhattan and Bronx Surface Tr. Operating Auth., 3 AD3d 410, 411 [1st Dept 2004] [plaintiff precluded from asserting that the defendants failed in their duty to provide a safe entrance onto the bus, where notice of claim asserted that the public sidewalk and/or curb near the bus stop was defective and/or poorly maintained].)
In Monmasterio v. New York City Housing Authority (39 AD3d 354 [1st Dept 2007] ), the Appellate Division, First Department explained,
“[N]othing in the notice of claim would have alerted defendant to the need to investigate the number and adequacy of the security personnel it employed, and plaintiffs were not free subsequently to interject a new, distinct theory of liability without leave of court. The inadequate security claim, which differs substantially from the inadequate lighting claim, is a new, distinct theory of liability and must be dismissed.”
( Id. at 356.)
However, in Williams v. Hooper (82 AD3d 448 [1st Dept 2011] ), the Appellate Division, First Department ruled that the plaintiff was permitted to present proof at trial that he was struck by some other front part of the bus, notwithstanding that the notice of claim asserted that the plaintiff was struck by the mirror of the bus. The Appellate Division stated, “Contrary to the Transit Authority's claim, plaintiff did not thereby advance a new and distinct theory of liability to assert that he was hit not by the mirror but by some other front part of the bus ( cf. Monmasterio v. New York City Hous. Auth., 39 AD3d 354, 356, 833 N.Y.S.2d 498 [2007] ).” ( Id. at 455.) It could be argued that, in Williams, the allegation that plaintiff was struck by some other part of the bus could be fairly implied by the allegation that the mirror of the bus had struck the plaintiff.
In addition, the Appellate Division, First Department has taken varying approaches to the question of whether a cause of action for negligent design or design defect may be implied from a notice of claim generally alleging negligence. ( Compare Jackson v. New York City Tr. Auth. 30 AD3d 289, 291 [1st Dept 2006][“The claim of general negligence asserted in the notice of claim is sufficient to encompass plaintiff's more specific claims regarding the absence of handholds or grab handles inside the bus”] with Barksdale v. New York City Tr. Auth., 294 A.D.2d 210 [1st Dept 2002] [claim of design defects in the gates “or other devices” between subway cars was a new theory of liability, where the notice of claim set forth a theory of liability based on the lack of and/or improperly maintained safety chains between the subway cars] and Chipurnoi v. Manhattan and Bronx Surface Tr. Operating Auth., 216 A.D.2d 171 [1st Dept 1995] [“The slippery seat theory, essentially a claim of design defect, was not alluded to in the complaint or in the original notices of claim which asserted only human error and a defect in the steering mechanism”].)
When a notice of a claim does not specifically mention any cause of action at all, the municipality or public authority must essentially guess the nature of the claim, and guess the causes of action that might later be pleaded. In this situation, there is a tension between the line of cases cited in Miller (89 AD3d 612) and the line of cases cited in Garcia (34 AD3d 334). On the one hand, Miller emphasizes that a notice of claim does not have to plead a cause of action or legal theory, but on the other hand, Garcia requires the Court to look at a notice of claim for causes of action and legal theories, to determine whether causes of action pleaded in a plenary action would “substantially alter” the nature of the claim(s) set forth in the notice of claim. Moreover, the tension exists because the Court of Appeals has reaffirmed that General Municipal Law § 50–e “does not require those things [notices of claim] to be stated with literal nicety or exactness” ' (Brown, 95 N.Y.2d at 393 [citation omitted] ), yet warned that “Section 50—e does not abet notice of claim by stealth.” (Rosenbaum, 8 NY3d at 12.)
Few cases provide real guidance. In Olivera v. City of New York (270 A.D.2d 5 [1st Dept 2000] ), the Appellate Division, First Department affirmed denial of leave to serve a late notice of claim asserting personal injuries, where the original, timely notice of claim indicated property damage only. The Appellate Division reasoned,
“To adopt plaintiff's position that such circumstances gave defendant timely actual notice of the facts constituting his claim would be to substitute police reports for notices of claim in every instance, mandate that defendant investigate every possible cause of action that might be suggested in an accident report, disregard the prejudice caused by the lost opportunity to conduct a prompt investigation, and effectively vitiate the protections afforded public corporations by [General Municipal Law § 50–e].” '
( Id. [emphasis supplied].) In Steinberg v. Village of Garden City (247 A.D.2d 463 [2d Dept 1998] ), the Appellate Division, Second Department affirmed dismissal of the complaint and denial of the plaintiffs' cross motion for leave to amend the notices of claim to assert claims for personal injuries and loss of services, where the Village “only had notice of [the insurer's] subrogation claim ...” ( Id. at 464.) The Appellate Divisions of the First and Second Departments have both said, “The fact that these alleged causes of action arose out of the same incident is not pivotal; rather, the nature of the claim and the theory of liability are determinative.” (Wanczowski v. City of New York, 186 A.D.2d 397, 397 [1st Dept 1992]; Mazzilli v. City of New York, 154 A.D.2d 355, 356 [2d Dept 1989].)
Here, plaintiff's notices of claim do not specifically name any cause of action, but plaintiff argues that the causes of action for negligence, for violations of Labor Law §§ 240 and 241, for violations for 12 NYCRR 23–4.1 through 12 NYCRR 23–4.5, and violations of the Occupational Safety and Health Act can nevertheless be implied from the notices of claim. Plaintiff cites Goodwin v. New York City Housing Authority (42 AD3d 63 [1st Dept 2007] ) and Baker v. Town of Niskayuna (69 AD3d 1016 [3d Dept 2010] ). Movants cite Brown v. New York City Transit Authority (172 A.D.2d 178 [1st Dept 1991] ), which held “Merely providing notice of the occurrence is not adequate to constitute notice of a particular claim.”
1.
Plaintiff also contends that the bill of particulars and deposition transcripts may be considered to supplement plaintiff's notices of claim. The Court addresses this argument first.
“In passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself. The relevant inquiry is set forth in General Municipal Law § 50–e(6), which provides that a mistake, omission, irregularity or defect made in good faith * * * may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.' In making this determination of prejudice, the court may look to evidence adduced at a section 50–h hearing, and to such other evidence as is properly before the court.”
(D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891, 893 [1994] [notice of claim did not identify bus or bus driver involved]; Portillo v. New York City Tr. Auth., 84 AD3d 535, 536 [1st Dept 2011] [defendant claimed the notice of claim failed to specify the location of the accident]; Brown v. City of New York, 56 AD3d 304 [1st Dept 2008][in combination with plaintiff's statutory hearing testimony, the notice of claim gave NYCTA sufficient notice that plaintiff might assert a claim for breach of NYCTA's duty to provide a safe place to board the bus].)
Here, it is undisputed that plaintiff did not appear for any statutory hearings before the MTA or NYCTA, and therefore there is no testimony from such hearings that could have been offered to supplement plaintiff's notices of claim. Moreover, plaintiff did not submit the deposition testimony to be considered on this motion.
Additional evidence to cure deficiencies in the notice of claim, can be considered, in appropriate circumstances, pursuant to General Municipal Law § 50–e (6). (D'Alessandro, 83 N.Y.2d at 893.)General Municipal Law § 50–e (6) permits “a mistake, omission, irregularity, or defect made in the good faith in the notice of claim” to be supplied “at any time after service of a notice of claim and at any stage of an action or special proceeding.” However, “the statute only authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” ' (Van Buren v. New York City Tr. Auth., 95 AD3d 604 [1st Dept 2012]; Betette v. County of Monroe, 82 AD3d 1708 [4th Dept 2011]; Niewojt v. City of Middletown, 78 AD3d 948 [2d Dept 2010]; Moore v. Melesky, 14 AD3d 757 [3d Dept 2005].) [amendments of a substantive nature are not within the purview of General Municipal Law § 50–e (6) ].) Otherwise, a plaintiff asserting a substantive change in the theory of liability from the notice of claim could assert that claim after the statute of limitations for that claim expired.
To illustrate, the following cases were ruled amendments of a substantive nature not permissible under General Municipal Law § 50–e (6): amending a notice of claim involving an arrest on April 9, 1993 to include a subsequent arrest on July 22, 1993 (Zwecker v. Clinch, 279 A.D.2d 572 [2d Dept 2001] ); adding a cause of action for false imprisonment where the notice of claim alleged personal injuries for the “violent and unprovoked assault” by a police officer (Colena v. City of New York, 68 A.D.2d 898 [2d Dept 1979] ); amendment of a notice of claim for personal injury where the notice of claim alleged property damage. (La Rocco v. City of New York, 37 A.D.2d 529 [1st Dept 1971]; see also Olivera, 270 A.D.2d 5.)
In Mahase, the plaintiff relied on the theory that the public sidewalk and/or curb near the bus stop was defective and/or poorly maintained, but raised for the first time at her deposition that the defendants failed in their duty to provide a safe entrance onto the bus. The Appellate Division, First Department ruled,
“The latter theory of liability is precluded here. It is precluded for failure to assert it in the original notice of claim, and the alternative means for asserting it, a late notice of claim, pursuant to General Municipal Law 50–e(5), or a General Municipal Law 50–e(6) amendment, would have been of no avail. In the latter two instances, aside from the issue of obtaining leave of the court, the theory was not asserted until 17 months after plaintiff's accident, exceeding the 1 year and 90 days limitations period for a late notice, and the General Municipal Law 50–e(6) notice of claim amendment provision merely permits correction of good faith, non-prejudicial, technical mistakes, defects or omissions, not substantive changes in the theory of liability.”
( Id. [internal citations omitted].) Here, plaintiff's bill of particulars was not served until either March 2008 or August 2008 (as movants claim), more than two years after the alleged accident, which was after the expiration of the applicable statute of limitations.
To determine whether or not plaintiff's bill of particulars assert a substantive change in the theory of liability, and thus whether the bill of particulars may be considered to supplement the notices of claim, the Court must first determine what theories of liability are being asserted in the notices of claim. Therefore, the Court's analysis must, in the first instance, be confined to the notices of claim.
2.
In Goodwin, the plaintiff served the New York City Housing Authority (N.Y.CHA) with a notice of claim on December 24, 2002—71 days after the date of the accident, October 14, 2002. The notice of claim identified the time of the accident, the place where the accident occurred, and the injuries claimed. (Goodwin, 42 AD3d at 64.) As to the requirement of “manner in which the claim arose,” the plaintiff stated: “Claimant was walking down steps from 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor.” ( Id.) As to the nature of the claim, the notice of claim stated, “Personal injuries sustained by claimant herein.” (Record on Appeal in Goodwin v. New York City Tr. Auth., 42 AD3d 63, at 41.)
Ninety-one days after the alleged accident, NYCHA advised the plaintiff by letter that it was rejecting the notice of claim because it “does not describe with sufficient particularity NYCHA's alleged negligence” and “NYCHA is severely prejudiced as it cannot conduct a proper investigation and otherwise assess the merits of the claim.” (Goodwin, 42 AD3d at 65.) Plaintiff's counsel received NYCHA's letter on January 21, 2003. Ten days later, the plaintiff served NYCHA with another notice of claim, which added, “Claimant tripped and/or slipped on broken/cracked/ chipped stairs covered with debris, as claimant was walking down steps from the 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor. Claimant fell as a result of defendant's negligence in maintaining such stairway.” ( Id. at 66.)The Appellate Division, First Department ruled that the second notice of claim was an amended notice of claim which was permissible under General Municipal Law § 50–e (6), because the plaintiff supplied NYCHA with the missing information within 17 days after the 90 day period to serve a notice of claim had run. The Appellate Division stated,
“This Court has consistently held that the notice of claim statute, General Municipal Law § 50–e, is to be applied flexibly. The Court has reiterated that flexibility is key so as to balance two countervailing interests: on the one hand protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. This Court has further held that the statute was not meant to be used as a sword to cut down honest claims but merely as a shield to protect municipalities against spurious ones.
* * *
[ T ] here was no change in the theory of liability, and no prejudice could have been caused to NYCHA from receiving notice of plaintiff's theory within so short a time after the statutory period ended. The first notice of claim made very clear that this was to be an action for personal injuries. Negligence was the only theory of liability implied by the plaintiff, and most certainly it was inferred by NYCHA, as evidenced by its reference to its alleged negligence' in the defendant's rejection letter of January 15, 2003.”
(Goodwin, 42 AD3d at 66–67 [emphasis supplied] [internal citations and quotation marks omitted].)
The Appellate Division also faulted NYCHA for not asking the plaintiff to supply the information that NYCHA believed was missing from the first notice of claim:
“[T]here are many examples in case law of a municipal authority, such as the transit authority, sending supplemental information forms asking for more information. Such conduct adheres more closely to the policy that municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort rather than rejecting a notice of claim outright.”
(Goodwin, 42 AD3d at 69.)
In Baker, the Appellate Division, Third Department ruled that the plaintiff's notice of claim was sufficient to apprise the Town of Niskayuna of the ensuing causes of action premised upon Labor Law violations. The notice of claim stated, in pertinent part:
“2. The nature of Claimant's claim as against the Town of Niskayuna, New York is for damages sustained by Claimant as the result of the negligence of the Respondent, its agents, servants, and/or employees.
3. The time when the claim ar[o]se and the injuries were sustained was on in or about December 27, 2004, in connection with the contract hereinafter referred to, when the Claimant, an employee of Gallo Construction Co., Inc., a subcontractor of LaBerge Engineering & Consulting Group, Ltd., which had been hired by Respondent, was standing in a ditch or trench dug or excavated in connection with a project on behalf of Respondent and LaBerge, and said claimant was struck by a wall of soil/clay approximately four feet thick and thirteen feet long and twelve feet high, which collapsed. Upon information and belief, Claimant suffered injury to his neck, shoulder, arms and body and, as a result thereof, became sick, sore, lame and disabled and required medical treatment.
4. The place where the injuries were sustained was the Stanford/Filmore area in the said Town of Niskayuna, New York.
5. The aforesaid incident and the injuries and damages resulting therefrom were caused solely by reason of the negligence and carelessness of the Respondent, its agents, servants and/or employees, in that, in accordance with the contract dated January 9, 2004, entered into by and between the Respondent and LaBerge Engineering & Consulting Group, Ltd., a representative and/or inspector with LaBerge was to, at all times, be on site during all construction work and to provide supervision over the performance of the excavation work and pipe installation being done by Gallo Construction Co., Inc.
That the Respondent, its agents, servants and/or employees, as the result of the aforesaid contract, caused Claimant to sustain serious injuries.
6. Solely by reason of the negligence, carelessness and recklessness of the Respondent, its agents, servants and/or employees, the Claimant has been injured and damaged.
7. As a result of the negligence, carelessness and recklessness of the Respondent, its agents, servants and/or employees, the Claimant has been injured and damaged.”
(Record on Appeal in Baker v. Town of Niskayuna, 69 AD3d 1016 at 153–154.)
The Appellate Division, Third Department stated,
“Plaintiff's notice of claim set forth, among other things, the date, time and location of the accident, and the way the accident occurred was described. The notice of claim related that plaintiff was working for Gallo, and it referenced LaBerge's role, as well as the fact that the accident occurred during a construction project that had been undertaken pursuant to a contract with the Town. Although it did not reference specific Labor Law sections, it asserted culpable conduct by the Town as a cause of the accident.”
(Baker, 69 AD3d at 1018 [emphasis supplied].)
In Brown, which movants cite, the notice of claim stated, in pertinent part:
“2. The nature of the claim:
Claim for personal injuries on behalf of ELSIE BROWN, and a claim for loss of services on behalf of MILTON BROWN.
3. The time when, the place where and the manner in which the claim arose:
The claim arose on November 17, 1985, between 5–5:30 p.m., on Madison Avenue near 85th Street, in the Borough of Manhattan, City and State of New York. That ELSIE BROWN was caused to fall over a broken sign which was negligently left at the place of the occurrence which created a dangerous condition and trap.
4. The items of damage or injuries claimed are (do not state dollar amounts)
The claimant, ELSIE BROWN sustained multiple injuries and more particularly a fractured elbow.”
(Record on Appeal in Brown v. New York City Tr. Auth., 172 A.D.2d 178, at 15.)
In Brown, the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively, MABSTOA) moved for summary judgment dismissing the action as against them, on the ground that they did not own, operate, or control the broken sign post which allegedly caused Elsie Brown's fall. The City of New York, a co-defendant, opposed the motion, arguing that Brown's fall occurred while she was attempting to board a bus on Madison Avenue.
Supreme Court denied the motion, stating
“Plaintiff stated in her examination before trial (EBT') that she tripped over a sign post as she was walking forward to enter a bus which had stopped about 10 steps from the curb [citation omitted]. If plaintiff had a safe, alternative route onto the bus, as MABSTOA claims, MABSTOA would indeed be relieved of liability [citation omitted]. However, this court cannot determine from the papers submitted herein precisely how the accident occurred and whether a safe, alternative route to the bus existed for plaintiff.”
( Brown v. New York City Tr. Auth., Sup Ct, N.Y. County, Aug. 27, 1990, Cohen, J., at 3.)
On appeal, the Appellate Division, First Department reversed the lower court, stating,
“Nothing alleged in the instant notice of claim furnishes the predicate for any theory of liability other than the one relating to the condition of the bus stop sign so that the Transit Authority defendants might have promptly investigated the matter. Accordingly, there was no way that the Transit Authority could be deemed to have received notice that plaintiffs might also assert, for instance, the absence of safe access to the bus. Merely providing notice of the occurrence is not adequate to constitute notice of a particular claim.”
(Brown, 172 A.D.2d at 181 [emphasis supplied].) The Appellate Division, First Department continues to cite Brown v. New York City Transit Authority with approval. ( See e.g. Rollins v. New York City Bd. of Educ., 68 AD3d 540 [1st Dept 2009]; Shmueli v. New York City Police Dept., 295 A.D.2d 271 [1st Dept 2002].) The Appellate Division, First Department reached the same result in Mahase v. Manhattan and Bronx Surface Transit Operating Authority (3 AD3d at 410.)
B.
To the extent that Goodwin could be read to impose a duty upon public authorities and municipal corporations to affirmatively notify claimants that the notices of claim are defective and to reject those notices of claim, such language is dicta. Neither General Municipal Law § 50–e nor Public Authorities Law §§ 1212 and 1276 place such an affirmative obligation upon public authorities and municipal corporations.
Like the first notice of claim in Goodwin, plaintiff in this case did not use the word “negligence” or any variant of “negligence” in the notices of claim, but the notices of claim here similarly set forth specific personal injuries. Therefore, this Court must conclude, as the Appellate Division, First Department ruled in Goodwin, that “Negligence was the only theory of liability implied by the plaintiff.” (Goodwin, 42 AD3d at 67.) Therefore, a cause of action for negligence may be implied from the notices of claim.
Because negligence may be implied from plaintiff's notices of claim, then causes of action for Labor Law may be implied from the notices of claim as well. Like the notice of claim in Baker, which alleged negligence and stated that the claimant-plaintiff was struck by a wall of soil/clay from an excavated trench that collapsed, plaintiff's notices of claim here state that the collapse of an excavation site buried plaintiff Allison Boles. Construction may reasonably be implied from the notices of claim because the notices of claim state that the location of occurrence was “the archeological dig/subway excavation” and that “plaintiff was an archeologist hired to ensure that no damage was suffered by the artifacts as a result of the excavation.” (Raicus Affirm., Ex A.) Therefore, this Court must conclude, as the Appellate Division, Third Department ruled in Baker, that causes of action alleging violations of Labor Law §§ 200, 240 and 241 may be implied from the notices of claim.
If a cause of action under Labor Law §§ 200, 240, and 241 can be implied from plaintiff's notices of claim under Baker, then it follows that violations of 12 NYCRR 23–4.1 through 12 NYCRR 23–4.5 may be also implied from the notices of claim, because these Industrial Code provisions set forth specific requirements for trenches and excavation operations.
C.
Although negligence and violations of Labor Law §§ 200, 240 and 241 may be implied from the notices of claim, that is not to say that plaintiff's notices of claim encompass any set of facts that may be actionable under a theory of negligence, or as violations of Labor Law §§ 200, 240 and 241 or the Occupational Health and Safety Act.
To illustrate, a cause of action alleging a violation of Labor Law § 240(1) might be based on allegations that a construction worker working on a height on a ladder fell due to the collapse of the ladder. ( See e.g. Panek v. County of Albany, 99 N.Y.2d 452 [2003].) A violation of Labor Law § 240(1) might also be based on allegations that a construction worker was struck by a falling object that was being improperly hoisted or secured. ( See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011];Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757 [2008] ).
Hypothetically speaking, a notice of claim that sets forth only that a construction worker fell from a collapsing ladder would not alert the public authority that the plaintiff would be seeking recovery based on a theory of a falling object, even though both causes of action are for violations of Labor Law § 240(1).
As discussed above ( see Section I.A, at 8–9), when a notice of a claim specifically names a cause of action, such as negligence, and the complaint asserts causes of action not specified in the notice of claim, courts have looked at whether the unspecified causes of action and the specified cause of action share “the essential facts necessary to sustain [the unspecified] causes of action.” (Mojica v. New York City Tr. Auth., 117 A.D.2d at 723. When a notice of a claim specifically mentions negligence, and the complaint also alleges negligence, courts have, for the most part, dismissed a cause of action for negligence based on acts or omissions that the public authority would not have been alerted to investigate based on statements in the notice of claim. ( see Section I.A, at 9–11.)
That said, the Court cannot now determine that, as a matter of law, plaintiff's causes of action for negligence and violations of Labor Law §§ 200, 240 and 241, and violations of the Occupational Safety and Health Act are based on the facts referred to in the notices of claim, or are based on facts that the movants would not have been alerted to investigate given the statements in the notices of claim. Even at this stage of the litigation, plaintiff has not come forward on this motion with specific factual theories that underlie these claims. Until that happens, the Court cannot determine whether plaintiff's notices of claim would have alerted movants to investigate the factual allegations upon which these claims are based.
The provisions of the Occupational Health and Safety Act cited in the bill of particulars, do not set forth specific occupational safety and health standards. Instead, 29 USC 654(a)(2) requires an employer to “comply with occupational safety and health standards promulgated under this chapter.” 29 USC 654(a)(1) “is intended as a catchall provision to cover dangerous conditions of employment not specifically covered by existing health and safety standards promulgated by the Secretary of Labor under the Act.” (Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 98 [2d Cir1981].)
Thus, plaintiff's bill of particulars does not specify those federal occupational safety and health standards that plaintiff appears to claim were violated.
Although movants are seeking summary judgment, their motion is based on purported deficiencies in the notices of claim, and plaintiff was therefore not required to lay bare her proof in opposition to the motion. ( See e.g. Hernandez–Vega v. Zwanger–Pesiri Radiology Group, 39 AD3d 710 [2d Dept 2007]; Oates v. Marino, 106 A.D.2d 289 [1st Dept 1984].)
Nevertheless, to the extent that movants argue that causes of action for negligence, violations of Labor Law §§ 200, 240, 241 and violations of the Occupational Safety and Health Act cannot be implied from the notices of claim, the Court must follow Goodwin and Baker and reject such an argument. Viewing the each notice of claim as a whole, the Court cannot say that a cause of action for negligence, for violations of Labor Law §§ 200, 240, and 241, or violations of the Occupational Safety and Health Act could be established only based on facts that the movants were not alerted to investigate after being served with the notices of claim.
Therefore, the motion for summary judgment is denied as to the MTA and NYCTA.
II.
There is no statutory requirement that a notice of claim be served upon MTA Capital Construction, Inc. Public Authorities Law § 1276(6) states, “[t]he provisions of this section which relate to the requirement for a service of a notice of claim shall not apply to a subsidiary corporation of the authority [the MTA].” ( See e.g. Stampf v. Metropolitan Transp. Auth., 57 AD3d 222 [1st Dept 2008] [no requirement that a notice of claim be served upon LIRR, a subsidiary of the MTA, citing statute].)
Therefore, the motion is denied as to MTA Capital Construction, Inc.
CONCLUSION
Accordingly it is hereby
ORDERED that the motion for summary judgment by defendants Metropolitan Transportation Authority, sued herein as “Metropolitan Transit Authority,” MTA Capital Construction, Inc., sued herein as “MTA Capitol Construction,” New York City Transit Authority, sued here in as “New York Transit Authority” is denied.