Cassidy v. New York City Tr. Auth.

2024 NY Slip Op 31145(U)

• Court: New York Supreme Court, New York County
• Decided: April 4, 2024
• Status: Unpublished

Opinion

Cassidy v New York City Tr. Auth. 2024 NY Slip Op 31145(U) April 4, 2024 Supreme Court, New York County Docket Number: Index No. 160320/2022 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160320/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 04/04/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 21 Justice -----------------------------------------------------------------------------------X ['IDEX NO. 160320/2022 DA YID CASSIDY MOTION SEQ. 1\0. 002 Plaintiff

- V - AMENVEV NEW YORK CITY TRANSIT AUTHORITY, METROPOLJTAN DECISIO:"'J AND ORDER ON TRANSIT AUTHORITY, DOE NYCTA EMPLOYEE, DOE MOTION NYCTA EMPLOYEE

Defendants

------------------------------------X

The following e-filcd documents, listed by NYSCEF document number (Motion 002) 11, 12, 13, 14, 15, l 6, 19, 20, 21,22,23,24, 25,26,27,28,29 wen:: read on this motion to/for LEA VE TO F[LE

Upon reading the above listed documents, having held a conference and oral arguments, and

having issued an interim order requesting additional evidence and papers, Plaintiffs motion seeking

to serve a late notice of claim nun pro tune upon Defendants is denied.

Applicable l,mv and Discussion

It is well settled tort law that a party seeking to recover damages from a public entity must

serve the public entity a timely notice of claim as a condition precedent to commencing a valid action

(see General Municipal Law §50-c [l][a]). This requirement provides fairness in allowing public

entities to investigate the alleged wrong and mount their defenses. However, claimants with legitimate

claims who were unable to timely serve a notice of claim and provide a reason for the delay and show

that the public entity knew or should have knmvn of the alleged tort, may, with court approval, be

granted an extension of time to serve a late notice of claim (see General Municipal Law §50-c [5] and

§ 50-i[l][e]; Pierson v. Cityo/New York, 56 NY2d 950 fl9921; Croce v. CityofNew York, 69 AD3d

488 r1,L Dept 20 I OJ). Also, in most instances, a notice of claim served after the 90-day period and

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without leave of court is a nullity (see AfcGarty v. City ofNew York, 44 AD3d 447 [I51 Dept 20071; see

also IYollins v. lv'ew York Ci1y Ed. (dEduc., 8 AD3d 30 l l st Dept 2004]).

In deciding whether to grant or deny a timely application, this Court will generally consider

whether the c!aimant provides a reasonable excuse for the delay, shows how the delay will not

substantially prejudice the public entity in its defense, and most significantly, decide whether facts

supported with some evidence exists to find that the public entity had or should have had notice of the

essential facts of the claim within 90 days from the date the claim arose or a reasonable time thereafter

(see General Municipal Law §50-e [5]; Dubowyv. City of New York, 305 AD2d 320, li st Dept 2003];

Porcaro v. City o.f lv'ew York, 20 AD3d 357 Dst Dept 2005]; Umeh v 1Vew York City Health and

Hospitals, 205 AD3d 599 [! st Dept 2022]; Alexander v ,Vew York City Transit Authority, 200 AD3d

509 l 2021 I; Borchein v City of'lVew York, 203 AD3d 5 70 f ! st Dept 2022]; Porcaro v. City of.New York,

20 AD3d 357,358 [1 st Dept 2005]). To establish the key factor that the public entity had notice of the

tort, a mere assumption or an attorney affirmation which is not evidence \viii not suffice (see e.g

Chattergoon v. lVew York City Hous. Auth., 161 AD2d 141 [ 1990]; see also Kim v. City of New York,

256 AD2d 83 [19981).

Reasonable Excuse

Here, Plaintiff through counsel alleges that a tort claim against Defendants arose on December

5, 2021 on the subway tracks at the 50th Street and Broadway subway station in Manhattan when

Plaintiff foll into the tracks and was subsequently struck by a subway train. As per General Municipal

Law §50-e, Plaintiff had within 90 days after the date of the alleged tort to timely serve a notice of

claim, approximately on or about March 5, 2022.

Plaintiffs counsel alleges attempting to electronically serve a timely notice of claim at the very

cusp of the end of the 90-day window, on March 4, 2022. Counsel alleges that the attempt was

unsuccessful due to internet connection failure. Thus, upon missing the 90-day window, Plaintiff had

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up to one year and 90 days after the date the claim arose to move this Court for an extension of time,

approximately on or before March 5, 2023 (see Public Authority Law§ 1212; General Municipal Law

§50-e [5]).

On December 5, 2022, Plaintiff through counsel filed a summons and complaint for negligence

against Defendants. Then on February 28, 2023, Plaintiff moved by Order to Show Cause for an

extension of time to file a late notice of claim (Motion. Seq. l ). Without explanation and without this

Court hearing the matter, Plaintiff then on March 6, 2023, withdrew the Order to Show Cause

(NYSCEF Doc. 17, 18). Again, on the cusp of exceeding the year and 90-day window by which this

Court may consider such application, on March 5, 2023, Plaintiff filed a motion seeking to have a late

notice of claim allegedly served on March 12, 2022 deemed timely served nunc pro tune.

Upon review of these facts, it is reasonable for this Court to assume that Plaintiff \Vas

represented by counsel within 90 days after Plaintiffs alleged accident. While Plaintiff counsel alleges

not being able to timely serve the notice of claim due to computer/internet problems, the motions papers

are silent as to why Plaintiff waited a year and 90 days to pursue this application. During ora!

arguments, Plaintiff did not provide any further reasoning. The Court also provided Plaintiff additional

time to submit further evidence, which Plaintiff did not. Plaintiff simply argues through an attorney

affirmation, that this Court should rely on the key factor that the Defendants had or should have had

notice that Plaintiff was struck by a subway train and accept the late notice of claim allegedly served

on March 12, 2022.

Although failing to provide a reasonable excuse for the delay is not always dispositive, under

the circumstance here, where Plaintiff has been represented by counsel since at least March 4 th of 2022,

(within the 90- day window to serve a timely notice of claim) and was provided additional time to

submit and supplement this motion, this Court finds it troubling that a reasoning for the delay was not

provided. A timely notice of claim is not optional, discretionary, or a mere requirement, but a condition

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precedent by statute and case law in seeking damages from a public entity (see General Municipal Law

§50-e [l][a]; see e.g. see McGarty, 44 AD3d 447; Pierson, 56 NY2d 950; Croce, 69 AD3d 488).

Furthermore, law office failure nor ignorance of the law are reasonable excuses (see Santiago v. New

York City Transit Auth., 85 AD3d 628 ll st Dept 2011 J; Rodriguez v. ,\Tew York City Health & Hasps.

Corp., 78 AD3d 538 lP 1 Dept 20l01). Moreover, Plaintiff relies on a March 12, 2022 late notice of

claim that was not in compliance with General Municipal Law §50-e as it was served after the 90-day

window and without court approval. Accordingly, Plaintiff has not provided a reasonable excuse for

his delay and the alleged March 12, 2022 notice is deemed a nullity (see McGarty; Wallins).

Defendants Knowledge of the Essential Facts

As to Defendant's knowledge, Plaintiff sole!y through an attorney affirmation, alleges the

Defendants knew or should have known of Plaintiffs accidenl. As per the afiirmation, Plaintiff was

under unspecified physical distress and disoriented at the time he entered the subway station. The

affirmation further alleges that he was observed by Defendants' unidentified personnel who did

nothing to assist him. The attorney affirmation further alleges that after Plaintiff was struck, emergency

services responded and that the incident was captured on video.

Yet Plaintiff does not submit the slightest evidence in support, such as a Plaintiff's affidavit,

an accident/aided report from NYPD or Transit, ambulance call sheet, EMS records, hospital/medical

records, news articles, social media reports, Transit's twitter reports, or a foil request. While this Court

recognizes that Transit, as a major and mass transportation carrier, normally keeps records of incidents

as significant as when an individual is struck by a subway train, in this application, it is was not

Transit's duty to provide any records. Thus, this Court finds that Plaintiff has not shown that he was

struck by a subway train nor any facts for this Court to infer that Transit had notice of a potential

actionable wrong (see e.g. Clarke v. Veolia Transportation Servs .. Inc., 204 AD3d 666 r2d Dept 20221;

Evans v. I'../ett' York City llous. Auth., 176 AD2d 221 [1st Dept 1991 I; Ayala v. City of Nev.: York, 189

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A 02d 632 11 st Dept 1993 l; Chattergoon 161 AD2d 142). On the contrary, based on the attorney

affirmation that Plaintiff was in a distress state, this Court may only infer that if the accident occurred

at all, it was Plaintiffs own doing by unlawfully trespassing into the subway train tracks.

In addition, Plaintiff's reliance on Jaime v. City ofNew York is misplaced and is not applicable

here. In Jaime the petitioner, an inmate at Rikers Island, was ab!e to establish notice based upon

evidence showing direct involvement by the respondents' employees, corrections officers, in assaulting

the petitioner (205 AD3d 544 11 st Dept 2022]). Unlike here, Plaintiff's motion is deprived of any

showing of an accident or a potential tort. Thus, under the circumstances and facts here, this Court

further finds insufficient prove to make a finding or infer that Defendants had knowledge of a potential

wrong.

Defendants' Prejudice

As to lack of prejudice, Plaintiff argues that Defendants will not be prejudice. Plaintiff

argues that based on the late notice Defendants received, that Defendants scheduled a statutory hearing

(although it was withdrawn) and based on the alleged EMT response to Plaintiffs accident and alleged

video, Defendants have had time to investigate. This Court disagrees. As the alleged late notice of

claim was deemed a nullity and Plaintiff has not established that the Defendants had actual knowledge

of a potential tort. Rather, Transit at this point would be highly prejudiced in preparing a defense this

late and remote in time from the alleged tort. As this Court must balance the intent of individuals with

legitimate claims against protecting public entities from unfounded claims and ensure that the public

entity has an adequate opportunity to explore the merits of the claim while information is still readily

available (Porcaro 20 AD3d at 357 supra., quotinx Teresia v. City of flew York, 304 NY2d 440

[ 1952]). Thus, Plaintiff has not met his burden that Defendants would not be biased by granting

Plaintiff an extension of time to serve such a late notice of claim.

Accordingly, it is hereby

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ORDERED that Plaintiff's motion seeking to serve a late notice of c laim upon Defendants is

denied; and it is further

ORD ERED that the part of the motion seeking to deem the late notice of claim allegedly served

on March 12, 2022, nunc pro tune, is denied; and it is further

ORDERED that with in 20 days from the entry of this order, Plaintiff sha ll serve a copy of this

order with notice of entry upon a ll parties in accordance wit h e lectronic filing.

Th is constitutes the decision and order of the Court.

4/4/24 -:::iJ 2 9t20 U::: DATE ;p ~ DENISE M DOMINGUEZ, J.S.C. CHECK ONE : CASE DISPOSED ~ NON-FINAL OISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHE

APPLICATION: SETTLE OROER SUBMIT OROER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE ,

)

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