Lapsley-Cockett v. Metropolitan Transit Authority

Appellate Division of the Supreme Court of New York

Lapsley-Cockett v. Metropolitan Transit Authority

2016 NY Slip Op 6861, 143 A.D.3d 558, 38 N.Y.S.3d 896

Appellate Division of the Supreme Court of the State of New York·Decided October 20, 2016·No. 451341/13 1750A 1750·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered on or about December 22, 2015, which, following a framed-issue hearing, granted plaintiffs’ motion to confirm the report of a judicial hearing officer (JHO), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 2, 2014, to the extent it held in abeyance defendants’ motion to dismiss the complaint as against defendant New York City Transit Authority for failure to serve a proper notice of claim, and referred the issue of service of the notice of claim to a JHO to hear and report on certain issues of fact, unanimously dismissed, without costs, as moot.

The court found credible evidence to show that the notice of claim was served, albeit by regular mail, on the Transit Authority within 90 days after the claim arose, and that the Transit Authority requested a 50-h hearing (see General Municipal Law § 50-e [3] [c] [“If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant ... be examined in regard to it”]). Thus, the “savings clause” was satisfied.

Concur — Mazzarelli, J.R, Acosta, Saxe, Moskowitz and Gesmer, JJ.

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Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered on or about December 22, 2015, which, following a framed-issue hearing, granted plaintiffs’ motion to confirm the report of a judicial hearing officer (JHO), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 2, 2014, to the extent it held in abeyance defendants’ motion to dismiss the complaint as against defendant New York City Transit Authority for failure to serve a proper notice of claim, and referred the issue of service of the notice of claim to a JHO to hear and report on certain issues of fact, unanimously dismissed, without costs, as moot.

The court found credible evidence to show that the notice of claim was served, albeit by regular mail, on the Transit Authority within 90 days after the claim arose, and that the Transit Authority requested a 50-h hearing (see General Municipal Law § 50-e [3] [c] [“If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant ... be examined in regard to it”]). Thus, the “savings clause” was satisfied.

Concur — Mazzarelli, J.R, Acosta, Saxe, Moskowitz and Gesmer, JJ.

Lapsley-Cockett v. Metropolitan Transit Authority, 2016 NY Slip Op 6861, 143 A.D.3d 558, 38 N.Y.S.3d 896 (N.Y. Ct. App. 2016).

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Opinion

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