Opinion
Index No. 154210/2018
01-21-2020
KATHLEEN MALLON, as Administratrix of the Estate of THOMAS LEE, Deceased and KATHLEEN MALLON, individually, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, TRAIN CONDUCTOR RAYS, PASS NO. 731906 and TRAIN OPERATOR N. DOMINIQUE, PASS NO. 226327 Defendant.
NYSCEF DOC. NO. 30 DECISION AND ORDER Mot. Seq. 1 Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers | Numbered | NYCEF # |
| Plaintiff's Motion/ Affirmations/Memo of Law | 1 | 12-19 |
|---|---|---|
| Defendants' Affidavit in Opposition | 2 | 22-23 |
Plaintiff Kathleen Mallon, individually, and as Administratrix of the Estate of Thomas Lee, commenced this action against Defendants for the bodily injury and wrongful death of decedent who, on May 26, 2017, was allegedly struck by a "1600" F train operated and maintained by Defendants New York City Transit Authority (Transit) and Metropolitan Transportation Authority (MTA) at the uptown platform at the subway station at 57th Street & 6th Avenue in Manhattan.
Plaintiff moves for an Order pursuant to General Municipal Law § 50-e and CPLR § 3025(b) to amend the Notice of Claim to include negligent design, maintenance and construction of the subject platform by virtue of a too large gap between the edge of the platform and the train. Plaintiff contends that the allegations concerning the improper maintenance, construction and design of the platform were already sufficiently pleaded in the Notice of Claim and Summons and Complaint, both of which allege that Defendants were negligent in failing to provide reasonable and adequate protection to the claimant and in failing to take the proper precautions to prevent the accident. Plaintiff also posits that the New York City Police Aided Report and photographs of the location, attached to the notice of claim, fully and adequately apprised Defendants of the fact that claims would be made concerning the maintenance, construction and design of the subway platform.
Defendants oppose the motion, claiming that Plaintiff does not seek to remedy a mistake or omission, but rather to add a new theory of liability, and that to the extent that the notice of claim contains a cause of action for bodily injury, Plaintiff's time to seek to leave of the court to file a late notice of claim with a new theory of liability has expired.
The court denies plaintiff's request for leave to file an amended notice of claim under General Municipal Law § 50-e (6) because it is an attempt to assert a new theory of liability. GML § 50-e (6) permits a notice of claim to be amended at any time, in the discretion of the court, but only to correct good faith, non-prejudicial, technical defects or omissions and not substantive amendments such as the addition of a party or a new theory of liability (Corwin v City of New York, 141 AD3d 484 [1st Dept 2016]) that cannot be fairly implied from the notice of claim (Lewis v New York City Housing Authority, 135 AD3d 444 [1st Dept 2016).
The cases cited by Plaintiff in support of its position do not involve an amendment to add a theory of recovery. Both Robles v New York City Hous. Auth. (23 NY3d 982 [1st Dept 2014]) and Hernandez v City of Yonkers (74 AD3d 1025 [2nd Dept 2010]) dealt with a mistaken location, which is within the purview of GML § 50-e(6). Similarly, in Goodwin v New York City Housing Authority (42 AD3d 63 [1st Dept 2007]), the court properly allowed a nunc pro tunc correction of a good faith error, that "was made in such timely fashion that, as a matter of law, it could not have prejudiced the defendant" and where there was no change in the theory of liability.
Plantiff's counsel likens the instant case to Jackson v New York City Transit Authority, 30 AD 3d 289 [1st Dept 2006] where the First Department found plaintiff's claim of general negligence asserted in the notice of claim to be sufficient to encompass more specific claims regarding the absence of handholds or grab handles inside the bus.
In contrast, in cases where a specific cause of action has been asserted, the First Department has consistently precluded amended notices of claim that create new theories of liability (see Frankel v New York City Transit Authority, 134 AD3d 440 [1st Dept 2015] [plaintiff's contention that the accident involving a slip on a staircase was caused by a missing portion of a handrail, instead of by water and/or liquid and debris, was a new theory of liability and could not be asserted in a late notice of claim because the statute of limitations had expired]; Cambio v City of New York, 118 AD3d 577 [1st Dept 2014] [where blind plaintiff's notice of claim solely alleged negligent maintenance, that he fell at a street corner because of a traplike condition in the roadway which the City of New York negligently failed to prevent, and testified at § 50-h hearing that the curb was higher than expected, City was not placed on notice of plaintiff's intention to hold it liable on a negligent design theory]; Rodriguez v Board of Educ. of City of New York, 107 AD3d 651 [1st Dept 2013] [where notice of claim limited theory of liability to negligent maintenance, upkeep and repair of staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting, the new theory, that the plaintiff was caused to slip and fall due to various design defects, including, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, was precluded] Van Buren v New York City Transit Authority, 95 AD3d 604 [1st Dept 2012] [Plaintiff's amendment impermissibly sought to change the theory of liability from a slip and fall on water that had accumulated inside defendants' bus through an open vent, to add the additional causative factor of the bus driver suddenly moving the bus forward before plaintiff had exited the rear doors]; Santana v New York City Transit Authority, 88 AD3d 539 [1st Dept 2011] [Plaintiffs impermissibly sought to change the theory of liability from a fall on the stairs due to snow, ice or slush to a fall due to a loose metal tread]; Mahase v Manhattan and Bronx Surface Transit Operating Authority, 3 AD3d 410 [1st Dept 2004] [passenger was not entitled to amend her notice of claim, or file late notice of claim, in negligence action against transit authorities for injuries allegedly sustained when passenger stepped to meet approaching bus, to assert theory that authorities failed in their duty to provide a safe entrance to bus]; Chieffet v New York City Tr. Auth., 10 AD3d 526 [1st Dept 2004] [belated "broken stairway" theory precluded since not in original notice of claim which stated that plaintiff fell due to slippery condition from accumulated water and/or oily substance on stairs]; Barksdale v New York City Transit Authority, 294 AD2d 210 [1st Dept 2002] [court properly precluded plaintiff from submitting proof at trial relating to new theory of liability where Plaintiff's notice of claim based liability on the lack of and/or improperly maintained safety chains between the subway cars where decedent fell, and after expiration of statute of limitation for amending notice of claim, plaintiff served a bill of particulars attributing the accident to design defects in the gates "or other devices" between subway cars]; Chipurnoi v Manhattan and Bronx Surface Transit Operating Authority, 216 AD2d 171 [1st Dept 1995] [court improperly granted leave to amend the notice of claim to add a "slippery seat" theory, essentially a claim of design defect, that was not alluded to in original notice of claim which asserted only human error and a defect in the steering mechanism]).
In the initial Notice of Claim filed August 9, 2017, Plaintiff's theory of liability is limited to the alleged negligent operation of the train and the negligence of the train operator. The court agrees with Defendants that there is nothing in the notice of claim that would put them on notice that Plaintiff would be asserting a theory of liability concerning improper maintenance, construction and design of the subway platform. Nor can the negligent design theory of liability be fairly inferred from the language in Plaintiff's Notice of Claim or Complaint (Thomas v New York City Housing Authority, 132 AD3d 432 [1st Dept 2015] [plaintiff's claim that defendant failed to maintain the handrail along the stairway at or near the second floor could not be fairly inferred from the notice of claim, which alleged that defendant was negligent in maintaining the second floor landing area]).
The court has considered Plaintiff's contention that the allegation in the notice of claim that Plaintiff was dragged by the train between the train and the platform gave rise to an inference that the platform was improperly maintained or designed. It is noted that the allegations in the notice of claim focused solely on the negligent operation of the train and the negligence of the train operator, rather than any defect inherent in the platform (cf. Brown v City of New York, 56 AD3d 304 [1st Dept 2008] [where plaintiff slipped and fell in a pothole while attempting to board bus, notice of claim gave agency sufficient notice of the nature of the claim and the manner in which it arose, as well as the fact that plaintiff might assert a claim for breach of Transit's duty to provide a safe place to board the bus]).
Additionally, there is no mention of the platform gap in the NYPD Aided Report. Finally, the photographs attached to the notice of claim depict only the area of platform where the accident occurred. They do not show a gap between the platform and a train, or even show a train in the station. Given that the facts alleged in Plaintiff's notice of claim are vague regarding the circumstances surrounding decedent's death and the manner in which Defendants were negligent, the allegation of negligent platform design cannot reasonably be inferred from the originally stated allegations and must be viewed as a substantive change in the theory of liability.
As for plaintiff's reliance on the complaint, it is misplaced since it is the Notice of Claim, not the complaint, which is controlling on whether or not a new theory of liability is being pled and plaintiff cannot not interject a new, distinct theory of liability in the complaint without leave of the court (Monmasterio v New York City Hous. Auth., 39 AD3d 354 (1st Dept 2007).
Alternatively, Plaintiff argues that even if the motion was made beyond the one-year-and-90-day statute of limitations applicable to the bodily injury claim made in the notice of claim (Public Authorities Law § 1212 [2]; Frankel v New York City Tr. Auth., 134 AD3d 440 [1st Dept 2015]), the motion is nevertheless timely based on the two-year statute of limitations applicable for the wrongful death claim (Public Authority Law § 2981), and there has been no prejudice to Defendants as they were fully apprised of the mechanism and location of the accident and can conduct a full and meaningful investigation. The court has found no case law to support this creative contention.
Defendants argue, and the court agrees, that if Plaintiff was allowed to amend the notice of claim to add a negligent platform-design theory of liability, any related testimony and evidence would be before the same jury, which could not consider this when deciding Plaintiff's bodily injury claim, and would invariably lead to juror confusion and be prejudicial to Defendants. Accordingly, it is
ORDERED, Plaintiff's motion to amend the notice of claim is denied.
Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied. Dated: January 21, 2020
New York, New York
ENTER:
/s/_________
Lisa A. Sokoloff, J.C.C.