Opinion
Index No. 515643/2017
04-15-2020
GRISELDA JACKSON Plaintiff, v. THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY D/B/A/ NEW YORK CITY TRANSIT, Defendants.
NYSCEF DOC. NO. 63 At an IAS Term, Part 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 15th day of April 2020.
DECISION & ORDER
Hon. Rosemarie Montalbano
Recitation, as required by CPLR §2219 [a], of the papers considered in the review of the Defendant's motion to dismiss:
| Papers Numbered | |
| Notice of Motion and Affidavit | 1 |
|---|---|
| Order to Show Cause and Affidavits Annexed | __________ |
| Answering Affidavits | 2 |
| Replying Affidavits | 3 |
| Other | __________ |
Introduction
This action was brought to recover damages for personal injuries. Defendants the City of New York, Metropolitan Transportation Authority, and New York City Transit Authority ("NYCTA") sued herein as New York City Transit Authority doing business as Metropolitan Transit Authority New York City Transit move to dismiss pursuant to CPLR 3211 and 3212. Plaintiff opposes.
Defendants move on the ground that following the date of the alleged accident plaintiff failed to serve notice of claim upon New York City Transit Authority within the requisite ninety (90) day period as required by General Municipal Law § 50-e.
Plaintiff argues in opposition that defendants were served with a timely notice of claim, accepted it without objection or rejection, and remained silent for two (2) years following its filing. Plaintiff further contends that defendants' motion is untimely as it was brought two years into this litigation and consequently they waived their affirmative defenses for their failure to assert them pre-answer or within a responsive pleading. Ms. Jackson maintains that she justifiably relied upon their silence to her detriment and maintains that defendant is equitably estopped from asserting such a defense because a statute of limitations defense cannot be determined on motion. Lastly, Plaintiff maintains that there is an issue of fact as to whether the notice of claim was timely filed.
Factual Background and Procedural History
On, December 12, 2016, while on a New York City subway platform plaintiff fell. Ms. Jackson alleges she sustained injuries while on the snow and ice covered "A" train platform at Beach 60th Street subway station in Queens.
On January 12, 2017, plaintiff filed a notice of claim against the City of New York and the New York City Economic Development Corporation. NYC Economic Development Corp. acknowledged receipt of said claim.
On August 11, 2017, the plaintiff, a resident of Brooklyn, commenced the present action by the filing of a summons and verified complaint. Defendants answered on October 6, 2017. Discovery was exchanged. On October 28, 2019, defendants brought the present motion.
Discussion
i. Notice of Claim
A condition precedent to commencing an action sounding in tort against the New York City Transit Authority is the timely service of a notice of claim. Said service must be made within ninety (90) days after the claim arises (General Municipal Law § 50-e[1][a] and [5]; Public Authorities Law § 1212[2]; Konner v New York City Transit Authority, 143 AD3d 774, 775-76 [2d Dept 2016]; Hunte v New York City Tr. Auth., 119 AD3d 735, 735-36 [2d Dept 2014; Matter of Ryan v New York City Tr. Auth., 110 AD3d 902 [2d Dept 2013]).
A court may grant an application to extend that ninety-day time period; however, not in the case where the application is made after the expiration of the one-year-and-90-day statute of limitations. That is, unless the statute of limitations has been tolled (Matter of Rojas v New York City Health and Hosps. Corp., 127 AD3d 870, 872 [2d Dept 2015]; Pierson v City of New York, 56 NY2d 950, 954 [1982]; Matter of Attallah v Nassau Univ. Med. Ctr., 131 AD3d 609 [2d Dept 2015]).
Public Authorities Law § 1212[2] requires service of a notice of claim upon the NYCTA that is "in compliance with all of the requirements of section [50-e] of the general municipal law" (Siegfried v Dakota, Inc., 45 Misc 3d 1222(A) [ Sup Ct 2014 ]).
The failure to comply with statutory notice of claim requirements can result in the dismissal of a complaint (CPLR 3211[a][7]; Sapoznik v Progressive Credit Union [ Sup Ct 2019 ]; Mosheyev v. New York City Dept. of Educ., 144 AD3d 645 [2nd Dept 2016]: Bertolotti v. Town of Islip, 140 AD3d 907 [2nd Dept 2016]).
The present claim arose on December 12, 2016. Plaintiff had until March 11, 2017, to file a notice of claim against the NYCTA. The City of New York and New York City Economic Development Corporation are not the NYCTA or the MTA. To maintain an action against the NYCTA plaintiff had to file a notice of claim with the NYCTA after the claim arose on or before March 11, 2017.
The opposition stresses that on March 6, 2017, a second notice of claim was filed with the New York City Transit Department. Plaintiff's counsel also supplied a copy of his professional calendar and attorney log as confirmation of the March 6th filing. However, the NYCTA and MTA first received plaintiff's notice of claim on April 4, 2017, and nothing prior. Plaintiff also never moved to have the April 4th notice of claim deemed served nunc pro tunc. Plaintiff failed to serve the requisite notice of claim upon the NYCTA and MTA.
Contrary to plaintiff's assertions, there is no obligation to plead plaintiff's failure to comply with the statutory notice of claim requirement as an affirmative defense (Siegfried v Dakota, Inc., 45 Misc 3d 1222(A) [ Sup Ct 2014 ]; citing Barnaman v. New York City Health & Hosp. Corp., 90 AD3d 588, 589 [2d Dept 2011]; Reaves v. City of New York, 177 AD2d 437 [1st Dept 1991]). The failure to serve a notice of claim may be raised at any time prior to trial (Siegfried, 45 Misc 3d 1222(A); citing Wade, 16 AD3d 677, 793 NYS2d 68).
ii. Equitable Estoppel
A municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party (Konner v New York City Tr. Auth., 143 AD3d 774, 776 [2d Dept 2016]; see Bender v. New York City Health & Hosps. Corp., 38 NY2d 662, 668, 382 NYS2d 18, 345 NE2d 561; Mohl v. Town of Riverhead, 62 AD3d 969, 970, 880 NYS2d 313; Wade v. New York City Health & Hosps. Corp., 16 AD3d 677, 793 NYS2d 68 [2d Dept 2005]). "Equitable estoppel will be applied against governmental agencies only in exceptional cases" (Zaiman v Metro. Tr. Auth., 186 AD2d 555, 556 [2d Dept 1992]; quoting DiGeloromo v Metro. Suburban Bus Auth., 116 AD2d 691 [2d Dept 1986]).
Ms. Jackson maintains that New York City Transit acknowledged timely filing of the notice of claim when they noticed her of and conducted a "50h hearing" on May 12, 2017, at a location provided by New York City Transit. She also points out that at no time did, NYCTA send correspondence specifying there were deficiencies in her notice of claim.
Plaintiff's participation at the statutory hearing does not preclude the defendants from first raising the untimeliness of the notice of claim (Frank v City of New York, 240 AD2d 198, 198 [1st Dept 1997]). Conversely, this notice should have alerted plaintiff that the notice of claim been had filed with the wrong party and needed to be filed with said agency. The fact that defendants engaged in pretrial discovery does not preclude defendants from raising the untimeliness of the notice of claim after the statute of limitations had expired (Hall v City of New York, 1 AD3d 254, 256 (1st Dept 2003).
Plaintiff has failed to demonstrate that defendants engaged in any misleading conduct that would support a finding that they should be equitably estopped. There is no basis for concluding that defendant had lulled plaintiff into a false sense of security.
Accordingly, it is hereby ordered that defendant's motion to dismiss is GRANTED. The complaint is dismissed. The Clerk is directed to enter judgment accordingly.
The foregoing constitutes the decision and order of this Court. Dated: April 15, 2020
Brooklyn, NY
/s/ _________
Hon. Rosemarie Montalbano
J. S. C.