Opinion
Index No. 155051/2023 Motion Seq. No. 001
01-04-2024
ANGEL TALAVERA, Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY COMPANY, METROPOLITAN TRANSIT AUTHORITY Respondents.
Unpublished Opinion
DECISION + ORDER ON MOTION
DENISE M DOMINGUEZ, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, 21, 22 were read on this motion to/for LEAVE TO FILE.
Upon the foregoing documents, the Petition to serve a late notice of claim on the Respondents NEW YORK CITY TRANSIT AUTHORITY COMPANY ("NYCTA") and METROPOLITAN TRANSIT AUTHORITY ("MTA") is granted.
The underlying incident which gives rise to the within application concerns Petitioner ANGEL TALAVERA'S claim that the Petitioner sustained personal injuries on February 27, 2023 when the Petitioner allegedly slipped on an unidentified substance on the subway platform, causing him to fall on to the subway tracks of the 6 train at Grand Central Terminal, leading to him being struck by a train. (NYSCEF Doc. 3)
As the incident occurred on February 27, 2023, the Petitioner had until May 28, 2023 to timely file a notice of claim pursuant to General Municipal Law §50-e. However, as May 28, 2023 was a Sunday, and as May 29, 2023 was Memorial Day, if filed on May 30, 2023, the notice of claim would have been timely.
Here, the Petitioner seeks to serve a late notice of claim on the Respondents, essentially arguing that the notice of claim was not timely served because, due to the accident, the Petitioner was confined to the hospital and only retained counsel on May 31, 2023, one day after the time to file the notice of claim had expired. (NYSCEF Doc. 1)
A court, pursuant to General Municipal Law §50-e, has discretion to grant or deny a timely application for an extension of time to serve a late notice of claim upon a public entity (General Municipal Law §50-e [5]; CPLR 217-a; Pierson v. City of New York, 56 N.Y.2d 950 [1992]).
In evaluating whether leave to file a late notice of claim should be granted, "[t]he key factors which the court must consider... are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense.... the presence or absence of any one factor is not determinative... and the absence of a reasonable excuse is not fatal." (Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [1st Dept 2003] internal citations omitted', see Matter of Morris, 88 A.D.2d 956, 957, 451 N.Y.S.2d 448 [2d Dept 1982], affd sub nom. Morris v. Suffolk Cnty., 58 N.Y.2d 767, 445 N.E.2d 214 [1982]; See Matter of Porcaro v. City of New York, 20 A.D.3d 357, 799 N.Y.S.2d 450 [1st Dept 2005]).
Great weight must be given to whether the public entity acquired actual knowledge of the essential facts constituting the claim within ninety (90) days or within a reasonable time thereafter (General Municipal Law §50-e [5]; see Bertone Commissioning v City of New York, 27 A.D.3d 222 [1st Dept 2006]; Matter of Orozco v City of New York, 200 A.D.3d 559, 161 N.Y.S.3d 1 [1st Dept 2021], leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022]). However, the mere "... knowledge of the facts underlying an occurrence does not constitute knowledge of the claim. 'What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the 'claim"." (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, 860 [1990], affd, 78 N.Y.2d 958, 580 N.E.2d 406 [1991], quoting Thomann v. City of Rochester, 256 N.Y. 165, 172, 176 [1931]; see also Kim v. City of New York, 256 A.D.2d 83, 681 N.Y.S.2d 247 [1st Dept 1998]).
Additionally, it is the burden of the petitioner to demonstrate that the late notice of the claim will not be substantially prejudicial. (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]). "Once there has been an initial showing regarding the lack of substantial prejudice toward the public corporation or municipality, the public corporation or municipality is required to make a 'particularized or persuasive showing that the delay caused them substantial prejudice'." (Orozco v. City of New York, 200 A.D.3d 559, 563, 161 N.Y.S.3d 1 (2021), leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022], quoting Lawton v Town of Orchard Park, 138 A.D.3d 1428, 1428 [4th-Dept 2016] see (Newcomb v. Middle-Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]).
Upon review, the Petitioner has met the burden in establishing the key factors warranting leave to serve a late notice of claim on the Respondents.
In support of the motion, Petitioner submits an affidavit of merit, three photos depicting FDNY responders at the subway station, a print out of a Tweet thread, a Patch article concerning the incident and an NYPD aided report. (NYSCEF Doc. 3, 4, 5, 6, 7) At oral argument, this Court directed that the Petitioner efile the supporting medical records regarding the Petitioner's related confinement, which Petitioner had not yet obtained from the facilities at the time this application was filed. (NYSCEF Doc. 20, 21, 22).
The proposed notice of claim asserts claims sounding in negligence against the Respondents related to their ownership/control of both the subway platform, and the subject subway train which struck the Petitioner. (NYSCEF Doc. 2). It is claimed that the Petitioner was caused to slip or trip onto the subway track. Specifically, that the Petitioner was caused to slip due to an unrepaired leak, or due to a "slippery liquid" or a "wet condition". Alternatively, it is claimed that the Petitioner was caused to trip on an alleged "broken, mis-leveled, cracked, uneven, raised, and/or lowered condition... and a trap-like condition". It is also alleged that the Respondents were negligent, in part, by providing improper lighting, poor track design and other unidentified defects which made it impossible for the train operator to see individuals on the tracks. It is also claimed that the Respondents did not provide the Petitioner with a Reasonable opportunity to remove himself from the tracks and the path of the subway.
In his June 5, 2022 affidavit of merit, the Petitioner avers that he slipped on an unidentified substance on the platform, which caused him to fall onto the subway tracks where he was struck by a 6 train. The Petitioner's affidavit of merit makes no mention of any tripping hazard, nor does the Petitioner claim that he was caused to trip. The Petitioner's affidavit of merit also avers that the train operator observed his fall on to the tracks and stopped the subway train. The location on the platform, or the direction of travel of the train is not identified, nor is any specific act of negligence on the part of the train operator. As a result of the accident, the Petitioner's leg was severely injured, he was removed from the scene by EMS and was admitted to Bellevue Hospital for over two months. Upon discharge form Bellevue Hospital on May 5, 2023, the Petitioner was transferred to a full-time care facility, which he was confined to at the time this application was made. The Petitioner avers that he was not aware of the filing deadline and did not retain counsel until after the 90 day period to file a notice of claim had expired. (NYSCEF Doc. 3).
Upon review, although ignorance of the law is not a reasonable excuse for a failure to timely serve a notice of claim (see Rodriguez v. New York City Health & Hosps. Corp., 78 A.D.3d 538, 911 N.Y.S.2d 347 [1st Dept 2010]), the Petition and affidavit of merit show a reasonable excuse as to why the notice of claim was not timely served. It is clear that the Petitioner sustained a significant injury was removed from the scene by EMS, was admitted to Bellevue Hospital immediately after the accident, and was admitted to Rockaway Care Center, directly from Bellevue Hospital, on May 5, 2023. (NYSCEF Doc. 3, 7, 21, 22). The Petition and the affidavit of merit also support the fact that the Petitioner did not retain counsel until May 31, 2023, just after the expiration of the 90 day time limit per General Municipal Law §50-e. It is also clear that counsel immediately took steps to investigate the subject incident, secure the affidavit of merit and filed the within application within days of being retained. In light of the Petitioner's hospitalization, following by confinement to a rehabilitation care facility, which encompassed the entire 90 day filing period, the Petitioner has demonstrated a reasonable excuse for filing the late notice of claim. (See Heiman v. City of New York, 85 A.D.2d 25,447 N.Y.S.2d 158 [1st Dept 1982]). Although the Petitioner did not submit the medical records with initial motion as the records had not yet been received from the facilities, the severity of the injury is confirmed in the NYPD aided report and the Petitioner's affidavit of merit. The affidavit also sets forth the timeline of the Petitioner's confinement, which is clearly supported by the medical records. Thus, the Petitioner was permitted . to submit the records following oral argument, after counsel advised the Court that the records had been received from the facilities.
The Petitioner also argues that the Respondents had actual knowledge of underlying facts of the claim at the time it occurred as the incident was immediately known to the Respondents' train operator and as the incident was reported via Twitter and in on-line articles. (NYSCEF Doc. 5, 6, 7). Moreover, the NYPD aided report reflects that the train operator was interviewed immediately after the accident and acknowledged that they observed the Petitioner fall on to the tracks as the subway was entering the station. It is also noted that the Petitioner was not shoved, pushed or the victim of a crime. Upon review, based on the facts and circumstances surrounding this case and the totality of the evidence submitted by the Petitioner including a posting on social media giving notice to passengers about train delays due to a person having been struck by a train at the subject station, the Court finds that the Respondents had actual knowledge of the facts constituting this claim within the 90 day period, or shortly thereafter. (Matter of Orozco, 200 A.D.3d 559).
Respondents oppose the application, arguing that Petitioner's evidence does not provide sufficient notice of the negligence claim. A police report alone may not be sufficient to show actual knowledge of the underlying facts of the claim if the report "... does not contain facts from which it can be readily inferred that a potentially actionable wrong had been committed by the respondents." Clarke v. Veolia Transportation Servs., Inc., 204 A.D.3d 666, 667, 163 N.Y.S.3d 836 [2d Dept 2022]; Evans v. New York City Hous. Auth., 176 A.D.2d 221, 574 N.Y.S.2d 343 [1st Dept 1991]). However, a review of the subject report shows that the accident description provides sufficient facts that would support a potential "actionable wrong". (See Ayala v. City of New York, 189 A.D.2d 632, 592 N.Y.S.2d 352 [1st Dept 1993]; Clarke, Evans). The details of the accident include the date, time, location, specific train and identify the operator. It is also clear that the report reflects that the Petitioner fell on to the tracks, and was not pushed. Thus, there is a description of the accident with sufficient details to establish a potential claim sounding in negligence, (see Rao v. Triborough Bridge & Tunnel Auth., 223 A.D.2d 374, 637 N.Y.S.2d 3 [1st Dept 1996]; cf. Green v. New York City Hous. Auth., 180 A.D.2d 586, 580 N.Y.S.2d 743 [1st Dept 1992]; cf Mittermeier v. State, 101 A.D.3d 426, 955 N.Y.S.2d 25 [1st Dept 2012]).
The Court further finds that as the Petitioner has shown that the Respondents had knowledge of the facts constituting the claim, and as the Respondents maintain and operate the subway system, they had access to the time, date and location of the alleged accident, the train operator/conductor, video recordings (if any), and any investigation involving the accident and thus will not be prejudiced. (Matter of Orozco, 200 A.D.3d 559). As the Petitioner has shown that the Respondents will not be prejudiced it was incumbent upon the Respondents to show how it would be prejudiced. The Respondents have made no such showing either in argument or by evidence or affidavit.
In evaluating an application to serve a late notice of claim, courts must balance the intent of the General Municipal Law §50-e to protect public entities from "unfounded claims and to ensure that [they] have an adequate opportunity 'to explore the merits of the claim while information is still readily available'" alongside the rights of individuals to bring forth legitimate claims (Porcaro 20 A.D.3d at 357 supra., quoting Teresta v. City of New York, 304 N.Y. 440, 443, 108 N.E.2d 397 [1952].). Whether .the Petitioner is ultimately successful in proving his negligence action, whether he is able to show that he was caused to slip/trip on to the subway tracks or show that the subway operator acted negligently, is immaterial to the within application. (Weiss v. City of New York, 237 A.D.2d 212, 655 N.Y.S.2d 34 [1st Dept 1997]).
Accordingly, upon review, the Petitioner has demonstrated that the filing of a late notice of claim is warranted.
As the Court struck that branch of Order to Show Cause which sought to compel the Respondents to conduct that Petitioner's statutory hearing within 30 days, that branch of the motion which seeks such relief is denied (NYSCEF Doc. 10). Additionally, although not clearly borne out in the motion, to the extent that the Petition seeks pre-action discovery, such relief is also denied as same was not duly noticed in the Order to Show Cause and as the Petitioner has not established a basis for such relief.
Accordingly, it is hereby
ORDERED that this Petition seeking to serve a late notice of claim upon Respondents is granted; and it is further
ORDERED that the notice of claim annexed to the Petition (NYSCEF Doc. 2) is deemed timely served upon respondent nunc pro tunc, and it is further
ORDERED that that branch of the motion which seeks to compel the Respondents to conduct the Petitioner's statutory hearing within 30 days is denied; and it is further
ORDERED that upon due notice by the Respondents, the Petitioner shall appear for a statutory hearing pursuant to the directives of General Municipal Law §50-h; and it is further
ORDERED that the Petitioner's request for pre-action discovery is denied.
This constitutes the decision and order of the court.