Opinion
23966/2016E
01-23-2018
Ivette Cancel, Plaintiff, v. Metropolitan Transportation Authority, Defendant.
Counsel for Plaintiff: Law Office of Stephen B. Kaufman, P.C. (John V. Deslocator, Esq.) Counsel for Defendants: Lawrence Heisler, Esq. (Jennifer Cahn, Esq.)
Counsel for Plaintiff: Law Office of Stephen B. Kaufman, P.C. (John V. Deslocator, Esq.) Counsel for Defendants: Lawrence Heisler, Esq. (Jennifer Cahn, Esq.) Mary Ann Brigantti, J.
The following papers numbered 1 to _5__ Read on this motion, REARGUE Noticed on June 28 , 2017 and duly submitted on the Motion Calendar of August 30 , 2017: PAPERS NUMBERED Notice of Motion- Exhibits and Affidavits Annexed 1,2 Answering Affidavit and Exhibits (aff., cross-motion, exh) 3,4 Replying Affidavit and Exhibits 5 Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law
Upon the foregoing papers, the plaintiff Ivette Cancel ("Plaintiff") moves for an order granting her leave to re-argue the motion by defendant Metropolitan Transportation Authority ("MTA") for summary judgment dismissing the complaint, pursuant to CPLR 2221(d), and upon reargument, denying the motion, and granting Plaintiff's cross-motion to amend the notice of claim and summons and complaint nunc pro tunc to include New York City Transit Authority ("NYCTA") and MTA Bus Company ("MTA Bus").
A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing 'that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision' it is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22, 27 [1st Dept. 1992][internal citations omitted]; CPLR 2221[d]).
Plaintiff argues that this court erred in denying her cross-motion because the relation-back doctrine applies in this matter. MTA, MTA Bus, and NYCTA all carry the MTA logo. Plaintiff argues that all of the outward evidence including the police report, MTA bus schedule, and website all seem to indicate that MTA is the proper entity, or at least united in interest with the subsidiary entities. Given this confusion, MTA's silence should toll the statute of limitations to permit Plaintiff to amend the notice of claim and summons and complaint nunc pro tunc.
These contentions are unavailing. "[U]nity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other" (see Regina v. Broadway-Bronx Motel Co., 23 AD3d 255 [1st Dept. 2005]). As noted in the prior decision, it is settled as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility" or buses (see Delacruz v. Metropolitan Transp. Authority, 45 AD3d 482 [1st Dept. 2007], quoting Cusick v. Lutheran Med. Ctr., 105 AD2d 681 [2nd Dept. 1984]; see also Towbin v. City of New York, 309 AD2d 505 [1st Dept. 2003]). Furthermore, MTA "and its subsidiaries must be sued separately, and are not responsible for each other's torts" (Mayayev v. Metropolitan Transp. Authority Bus, 74 AD3d 910, 911 [2nd Dept. 2010][internal quotations omitted]; Fridman v. New York City Tr. Auth., 131 AD3d 1202, 1203 [2nd Dept. 2015]). MTA is therefore a "distinct legal entity" and it not united in interest with NYCTA or MTA Bus (see Reis v. Manhattan and Bronx Surface Transit Operating Authority, 161 AD2d 288 [1st Dept. 1990]; Zaiman v. Metropolitan Transit Authority, 186 AD2d 555, 557 [2nd Dept. 1992]; Lopez v. Metropolitan Transp. Auth., 267 AD2d 359 [2nd Dept. 1999]). The ubiquitous use of the "MTA logo" on its web site or literature, the shared mailing address, and its appearance on the police report, does not change the "legal conclusion" that it is a separate entity (see Mayayev v. Metropolitan Transp. Authority Bus, 74 AD3d at 911).
Plaintiff argues that this court should have applied the doctrine of equitable estoppel to toll the statute of limitations, and/or to prevent MTA from claiming that it was an improper party in this case. As noted in the prior decision, in Bender v. New York City Health & Hosps. Corp., the Court of Appeals held that the doctrine of equitable estoppel only applies "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (38 NY2d 662, 668 [1976]), and this doctrine is designed to insure that statutes such as §50-e of the General Municipal Law "do not become 'a trap to catch the unwary or the ignorant'" (id., citing Sweeney v. City of New York, 225 NY 271, 273 [1919]). "However, '[t]hat holding, "addressed to an unusual factual situation, is of very limited application and should not be read as diminishing the vitality of the general rule that the doctrine of estoppel is not applicable to agencies of the State acting in a governmental capacity" (Rodriguez v. City of New York, 169 AD2d 532, 533 [1st Dept. 1991], quoting Matter of Hamptons Hosp. & Med. Center v. Moore, 52 NY2d 88, 93-94 [1981]). Equitable estoppel is "invoked sparingly and only under exceptional circumstances" (see Luka v. New York City Transit Authority, 100 AD2d 323, 325 [1st Dept. 1984], aff'd, 63 NY2d 667 [1984]).
Two recent Appellate Court decisions illustrate when "exceptional circumstances" exist for purposes of equitable estoppel (Konner v. New York City Tr. Auth., 143 AD3d 774 [2nd Dept. 2016]; Singh v. Metropolitan Transp. Auth., 153 AD3d 1152 [1st Dept. 2017]). In both of these cases, the plaintiffs served their notices of claim on MTA instead of the proper tortfeasor entity. In Konner, after serving his notice of claim, the plaintiff received a letter with no letterhead scheduling plaintiff to appear for a hearing "by virtue of the power conferred on the NYCTA by [Public Authorities Law §1200 et seq., as amended]..." The plaintiff appeared for the hearing before a NYCTA examiner, and the examiner requested authorizations for "the Transit Authority" and directed a physical examination as deemed necessary by "the Transit." The hearing transcript was forwarded to the plaintiff's counsel, and the cover letter's letterhead contained an MTA logo along with the words "New York City Transit." The plaintiff thereafter commenced an action against NYCTA, among others. After submitting an answer with general denials, NYCTA moved for summary judgment due to the plaintiff's failure to serve a Notice of Claim. Supreme Court granted the motion, and the Second Department reversed, holding that under these circumstances, "the NYCTA wrongfully or negligently engaged in conduct that misled the plaintiff to justifiably believe that service of the notice of claim upon the MTA was of no consequence, and lulled her into sleeping on her rights to her detriment" (143 AD3d at 776-777). In Singh, according to the record on appeal, the plaintiff served a Notice of Claim addressed to defendants MTA, MTA Bus, and MTA Bus Regional Operations. Soon thereafter, plaintiff's counsel received a letter scheduling the plaintiff to appear for an oral examination regarding the plaintiff's claim against "MTA Bus Company." The plaintiff thus believed that his notice of claim was properly served with respect to defendant MTA Bus. At the hearing, the plaintiff was informed that such hearing was "in relation to a claim that was filed against the MTA relating to [the subject motor vehicle accident]." The plaintiff thereafter commenced an action against, among other entities, MTA Bus. MTA Bus then moved to dismiss the complaint, alleging that it was not served with a Notice of Claim. Supreme Court granted its motion and denied a motion to renew/reargue. The First Department reversed and reinstated the complaint with respect to MTA Bus, holding that under these circumstances, "MTA Bus is equitably estopped from claiming that it is not the proper party defendant" (153 AD3d at 1153, citing Konner v. New York City Tr. Auth., 143 AD3d 774).
The foregoing cases illustrate the doctrine of equitable estoppel applies in this context where a defendant has either engaged in overt affirmative misleading acts or conduct, or where it failed to act when it had an affirmative duty to do so (see Bender v. New York City Health & Hosp. Corp., 38 NY2d at 668 ["the equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act"]). In this case, MTA did not engage in any affirmative wrongful or misleading conduct, and did not fail to act when it had a duty to do so, to invoke the doctrine of equitable estoppel. Plaintiff argues that MTA accepted the notice of claim without objection, and stayed silent for one year following its service without advising Plaintiff that she had sued an improper entity. However, MTA had no affirmative duty or obligation to either reject the notice of claim or advise Plaintiff that it was an improper defendant (see, e.g., Regina v. Broadway-Bronx Motel Co., 23 AD3d 255, 255 [1st Dept. 2005]; Cane v. City of New York, 209 AD2d 217 [1st Dept. 1994][governmental entity was "under no obligation to aid plaintiffs in prosecuting their claims"]; see also Rodriguez v. City of New York, 169 AD2d 532, 533 [defendant not obligated to apprise plaintiff that his notice of claim was untimely]). MTA was only obligated to refrain from misleading Plaintiff as to whether she sued the proper party. Unlike in Konner or Singh, supra, MTA here did not misleadingly correspond with Plaintiff's counsel or schedule Plaintiff for a hearing after receipt of the notice of claim and prior to the expiration of the statute of limitations. MTA did not actively engage in litigation or other acts prior to expiration of the statue of limitations that would have led Plaintiff to believe she had sued the proper entity or discourage her from further investigating the matter. Under these circumstances, MTA did not engage in conduct that can be described as "purposeful, strategic silence" while actively litigating the case, that may invoke the doctrine of estoppel (see e.g., McHale v. Anthony, 70 AD3d 463, 466 [1st Dept. 2010], lv. den., 15 NY3d 710 [2010]; Farrulla v. Happy Care Ambulette Inc., 125 AD3d 529, 530-31 [1st Dept. 2015]; compare Frycynski v. Niagara Frontier Transp. Auth., 116 AD2d 979 [4th Dept. 1986], lv. dism., 67 NY2d 960 [1986]; compare Bethel v. New York City Transit Authority, 215 AD2d 206, 206 [1st Dept. 1995]).
Plaintiff asserts that the police accident report states that the other vehicle involved in this accident was an "MTA Bus." The information in the uncertified police report is hearsay and cannot be considered (see Sansevere v. United Parcel Service, Inc., 181 AD2d 521 [1st Dept. 1992]). Moreover, there is no indication in the report that the officer obtained documentation from the bus driver indicating that MTA actually owned the bus.
Plaintiff argues that "the cloak that the MTA has allowed to be formed protecting itself from liability is an exceptional circumstance" thus invoking the doctrine of equitable estoppel. Plaintiff asserts that MTA uses its logo on the buses, bus schedules, and bus stops, the "Google" search result of "NYC MTA, MTA Bus Company, and NYC Transit Authority" all make various references to MTA, and all of these entities share the same mailing address. Accordingly, there is much confusion regarding the proper legal entity responsible for claims against New York City buses.
After a close review of the papers, this court finds that a governmental entity such as MTA cannot be estopped from denying that it is a proper entity merely because of the ubiquitous presence of its logo on buses or bus literature, on passive web sites, or due to a shared office building. These are not the sort of overt misleading acts or omissions contemplated by the Court of Appeals that warrant invocation of the doctrine. The judicial notice found and the underlying decision of the lower court in Delacruz is not binding on this court, and in any event, its ultimate holding was reversed on appeal (Delacruz v. Metropolitan Transp. Authority, 14 Misc 3d 886 [Sup. Ct., Bx. Cty., 2007], rev'd, 45 AD3d 482 [1st Dept. 2007]). Furthermore, Plaintiff does not explain what other investigative efforts she undertook to determine whether, legally, MTA was the proper defendant here, aside from internet searches and viewing of the company logo in various places. Plaintiff also submits a letter that it received in a different case. The letter is on New York City Transit letterhead and only acknowledges confusion concerning either NYCTA or MTA Bus Co.'s involvement with buses. The letter makes no reference to MTA individually. Plaintiff does not state that she relied on the newspaper articles referred to in the letter when commencing her action against MTA only as opposed to NYCTA or MTA Bus Co.
In sum, to estop MTA from claiming that it is not a proper entity due to alleged confusion would mean that any claimant who has accessed an MTA-affiliated web site or saw its logo on a bus or bus schedule would have a built-in excuse for failing to sue the proper entity in the event of a city bus accident. This was clearly not the intention of the Court of Appeals, as the doctrine of equitable estoppel is to be invoked sparingly and only in exceptional circumstances (see Luka v. New York City Transit Authority, 100 AD2d 323, 325 [1st Dept. 1984], aff'd, 63 NY2d 667 [1984]). In light of the foregoing, Plaintiff has failed to demonstrate that this court "overlooked or misapprehended the facts or law" in its prior decision, and therefore her motion to reargue is denied.
This constitutes the Decision and Order of this Court. Dated: January 23, 2018 Hon. Mary Ann Brigantti, J.S.C.