Kapitanova v. New York City Tr. Auth.

Opinion

Nina Kapitanova, Plaintiff-Appellant,

against

New York City Transit Authority, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered on October 2, 2015, which granted defendant's motion to vacate the default judgment and to dismiss the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered October 2, 2015, affirmed, without costs.

Civil Court properly vacated the default judgment and dismissed the complaint. Defendant's failure to timely answer was neither willful nor intentional, and was adequately explained as attributable to law office failure (see Rosenblatt v New York City Tr. Auth., 122 AD3d 410 [2014]; Acevedo v New York City Tr. Auth., 16 AD3d 144 [2005]).

Defendant also presented a meritorious defense to this action. Plaintiff's notice of claim was not served within 90 days of the date on which her claim arose (see General Municipal Law § 50-e[1][a]; Hunte v New York City Tr. Auth., 119 AD3d 735, 735-736 [2014]), and she failed to move for leave to serve a late notice of claim within one year and ninety days after the claim arose (see Singleton v City of New York, 55 AD3d 447 [2008]). As the notice of claim requirement is deemed "an indispensable element of the substantive causes of action," the complaint was properly dismissed (Mojica v New York City Tr. Auth., 117 AD2d 722, 724 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: December 29, 2016