Opinion
Index No.: 151219/2017
10-30-2018
CINDY MCDONALD, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY and "JOHN DOE" being an employee and bus operator for NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, METROPOLITAN TRANSPORTATION AUTHORITY and/or MTA BUS COMPANY, whose identity is currently unknown, Defendants.
NYSCEF DOC. NO. 25 DECISION AND ORDER Motion No.: 3225-001
Recitation, as required by CPLR 2219(a) of the following papers numbered were fully submitted on the day 17th day of October 2018.
| PapersNumbered | |
|---|---|
| Defendants Notice of Motion, Affirmation and Exhibits | 1, 2 |
| Plaintiff's Affirmation in Partial Opposition | 3 |
| Defendants Reply Affirmation | 4 |
| Affirmation/Affidavit of Service (NYSCEF DOC. 2, 3, 4 and 5) | 5-8 |
Upon the foregoing papers, defendants' motion, inter alia, to dismiss the complaint as against defendants, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, and "JOHN DOE", based upon plaintiff's failure to appear at a hearing pursuant Public Authorities Law 1212[5] or in the alternative, to compel plaintiff to appear for such hearing is denied.
Defendants, METROPOLITAN TRANSPORTATION AUTHORITY and MTA BUS COMPANY, also moved to dismiss the complaint pursuant to CPLR 3211[a][7] and 3212. Plaintiff's Affirmation in Partial Opposition consented to the dismissal and only opposed the balance of the motion as against the "NYCTA" defendants.
This is an action for personal injuries allegedly sustained by plaintiff on March 4, 2016 at approximately 8:05 P.M. It is alleged that plaintiff was a passenger aboard bus #7016 owned by defendants, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, and "JOHN DOE", and operated by "JOHN DOE" (hereinafter "NYCTA").
A Notice of Claim was timely filed on May 27, 2016 (Ex. "A"). Plaintiff appeared for a hearing pursuant to Public Authorities Law 1212[5] on July 8, 2016. The hearing was recorded by an electronic sound recording and a transcript was produced through a transcription service (Ex. "D"). Thereafter, plaintiff filed the summons and verified complaint on May 30, 2017 (Ex. "B") and served same on all defendants on June 7, 2017 (NYSCEF DOC. 2-5). Defendants served their answer on August 22, 2017 (Ex. "C").
Defendant, NYCTA, now moves this Court seeking to dismiss the complaint for plaintiff's failure to appear at what can only be described as a "do over" of the statutory hearing since admittedly the electronic sound recording device failed to adequately capture the testimony on July 8, 2016. The transcript is riddled with the notation of "inaudible" resulting in incomplete questions and answers. It is defendants' position that their investigation and defense of this "blind accident" will be prejudiced absent a second opportunity to conduct a statutory hearing.
Defendants' Reply Affirmation, paragraphs 9 and 10.
However, plaintiff argues that the inadequacy of the transcript is through no fault of her own and as she has complied with the statutory mandate, plaintiff should not be compelled to appear for a second hearing two years later. The Court agrees.
This is a case of first impression as conceded by both parties. The Court finds that the facts of this case are akin to when the statutory hearing is indefinitely postponed, and by reason of the municipality's inactions, the hearing is not rescheduled prior to the expiration of the statute of limitations (October v. Town of Greenburgh, 55 AD3d 704 [2d Dept. 2008] and Billman v. City of Port Jervis, 71 AD3d 932 [2d Dept. 2010]). Here, once the recording was transcribed and it became apparent that the transcript could not aid defendants' early investigation of this claim, they were under an affirmative duty to reschedule the hearing at "the earliest possible date available" (October v. Town of Greenburg, 55 AD3d 704-705 and Billman v. City of Port Jervis, 71 AD3d 933). It is noted that this action was commenced on May 30, 2017, which was ten months after the initial hearing and approximately three days prior to the expiration of the statute of limitations. Defendants have not offered proof that the transcript was forwarded to plaintiff with a demand for a further hearing prior to the commencement of this litigation and that plaintiff failed to respond or comply.
Accordingly, it is hereby
ORDERED, that defendants motion to dismiss this action as against METROPOLITAN TRANSPORTATION AUTHORITY and MTA BUS COMPANY is granted on consent; and it is further
ORDERED, that the caption of this action is hereby amended as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND
CINDY MCDONALD, Plaintiff,
- against -
NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, and "JOHN DOE" being an employee and bus operator for NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, whose identity is currently unknown, Defendants.
and it is further
ORDERED, that defendants shall serve a copy of this Order with Notice of Entry upon plaintiff, and the Clerk of the Court and the Calendar Clerk who shall amend their records accordingly; and it is further
ORDERED, that defendants' motion to dismiss this action as against the remaining defendants, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT a/k/a NYC TRANSIT, and "JOHN DOE" based upon plaintiff's failure to appear for a hearing pursuant to Public Authorities Law 1212[5] is denied; and it is further
ORDERED, that defendants' motion to compel plaintiff to appear for a second hearing pursuant to Public Authorities Law 1212[5] is denied.
This constitutes the decision and order of the Court.
ENTER:
/s/_________
HON. THOMAS P. ALIOTTA, J.S.C. Dated: October 30, 2018