Singh v. City of New York

2024 NY Slip Op 31021(U)

• Court: New York Supreme Court, New York County
• Decided: March 27, 2024
• Status: Unpublished

Opinion

Singh v City of New York 2024 NY Slip Op 31021(U) March 27, 2024 Supreme Court, New York County Docket Number: Index No. 157573/2023 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. 157573/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/27/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT; HON. DENISE M DOMINGUEZ PART 35 Justice ---------------------------------------------------------------------------------X INDEX NO. 157573/2023 SINGH, BIKRAMJIT MOTION SEQ. NO. ----'-00"--'l=------ Petitioner

- V - DECISION AND ORDER ON CITY OF NEW YORK et al MOTTON

Respondents --------------------------------------------------------------------------------- X

The fo!lowing e-filed documents, listed by NYSCEF document number (Motion 001) 2, 13, 14, !5, 16, 17 were read on this motion to/for LEA VE TO FILE

Upon reading the above listed documents and having held a conference with Petitioner and

Respondents, the City of New York (the City), New York City Transit Authority and Metropolitan

Transit Authority (Transit), the Petition seeking multiple reliefs is granted in part.

Pursuant to General Municipal Law §50-e, this Court has discretion to grant or deny a timely

application for an extension of time to serve a late notice of claim upon public entities (General

Municipal Law §50-c [51; Pierson v. City of Ne,t' York, 56 NY2d 950 11992]).

Among the enumerated factors to consider, great weight must be given to whether the public

entity acq uircd actual notice of the essential facts of the tort claim within 90 days after the claim arose

or a reasonable time thereafter (General Municipal Law §50-e [5]). Other key factors to consider are

whether there is a reasonable excuse for the delay and whether the delay would substantially prejudice

the public entities in its defense (see Dubowy v. City of New York, 305 AD2d 320 [JS1 Dept 2003];

Porcaro v. City of NY, 20 AD3d 357 [P1 Dept 2005]; see eg. Matter of Morris, 88 AD2d 956 l2d Dept

1982]).

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Further, in deciding these applications, courts must balance protecting public entities from

unfounded tort claims and assure they have time to adequately explore the merits of a claim against

the rights of individuals to bring forth legitimate claims (Porcaro 20 AD3d at 357).

Here Petitioner alleges that that on January 6, 2023, while waiting for a subway train on the

116th Street Subway Station at Lenox Avenue in Manhattan, he was robbed by a group of two to four

unknown individuals. Petitioner further alleges that in attempting to escaped from these individuals he

entered the subway tracks by jumping down. He further alleges that in attempting to get back on the

platform on the other side of the train tracks he was struck by a subway train. Petitioner further alleges

sustaining severe injuries and being hospitalized for nearly six months immediately following the

accident.

Within one year and ninety days, on Ju!y 28, 2023, Petitioner timely move this Court pursuant

General Municipal Law §50-e for an extension of time to serve the late notice of claim upon

Res pondcn ts.

As to the reason for the delay, Petitioner's affidavit alleges that he was physically incapacitated

since he was hospitalized at Mount Sinai in Manhattan immediately after the accident in January 2023

until April 18, 2023. He was then admitted to Harlem Hospital from April 20, 2023 to April 28, 2023,

then to Bellevue Hospital from April 28, 2023 to May 14, 2023 and then to Long Island Jewish Hospital

from May 15, 2023 to June 1, 2023. On June 8, 2023, Petitioner retained counsel and following their

investigation on July 28, 2023, Petitioner's counsel filed this instant Petition.

Thus, these facts in Petitioner's affidavit coupled with a letter from Petitioner's treating doctor

are sufficient for a finding that Petitioner was incapacitated within 90 days after the date the claim

arose and that Petitioner's counsel shortly after being retained moved for an extension of time to serve

Respondent (see General Municipal Law §50~e [5]). Thus, Petitioner has established a reasonable

excuse for the delay in not serving Respondents with a notice of claim within 90 days from the date

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the claim arose as required by General Municipal Law §50-e.

As to a showing that Transit Respondents acquired actual knowledge of the essential facts of

Petitioner's tort claim within 90 days from the date the claim arose or within a reasonable time

thereafter, Petitioner submits an NYPD aided report. The report reflects the date, time, and location of

the accident, identifies Petitioner, and states that the train operator was interviewed immediately after

the accident. Per the report, the train operator acknowledged that they observed the Petitioner on the

"roadbed" as the subway was entering the station, that the brakes were then engaged, but that the train

nevertheless came into contact with the Petitioner. While a police report alone may not be sufficient

to show actual knowledge of the underlying facts of a claim, here the report is sufficient (see e.g.

Clarke v. Veolia Transportation Servs., inc., 204 AD3d 666 f2d Dept 20221; Evans v. New York City

Haus. Auth., 176 AD2d 22\[lst Dept 1991]; Ayala v. City of]\-'ew York, 189 AD2d 632 [1st Dept

I 993]). Further, Transit also submits their own accident reports showing that it investigated this

incident on the day it occurred, including securing statements from the train operator and conductor.

Hence, there is ample evidence to find that Transit had knowledge of the facts constituting Petitioner's

tort claim as of the date of the accident to properly investigate any potential actionable wrong.

As to any prejudice to Transit Respondents, this Court finds that since Transit Respondents

had knowledge of the facts constituting the claim, Transit Respondents will not be prejudiced by a late

notice of claim as they maintain and operate the sub\vay system, have 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 (see Matter of Orozco v City of l./ew York, 200 AD3d 559 [1st

Dept 2021 ]).

Striking Language in the Proposed lv'otice of Claim

As required, Petitioner submits a proposed notice of claim. As to the nature of the claim

Petitioner alleges more than just negligence in the operation and maintaining of the subv.-ay tracks and

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subway train, Petitioner also alleges negligence on the basis that Respondents did not have barricades

preventing Petitioner from entering the subway tracks or adequate security preventing criminality.

However, the aided report makes no mention to any alleged robbery or other crime related to

or precipitating this incident. Nor does Transit's accident reports reflect that there was any

contemporaneous report related to the alleged robbery or other crime. Further, in connection with the

within Petition, Petitioner does not submit any police/aided report, witness statements, or any other

evidence concerning his claim that he had to jump on to the subway tracks and cross over to the other

tracks in the opposite direction to flee from individuals. In opposition, Transit Respondents argue that

they would be prejudiced in having to defend from such claims. This Court agrees.

It is unlawful to enter subway train tracks (see Penal Code Section 140.10). Here Petitioner

provides reasons for trespassing onto the subway track. Such facts may go toward comparative fault

arguments in Petitioner's negligence action but are insufficient for a showing that Respondents had or

should have knowledge of the essential facts constituting these type of potential wrongs against

Petitioner (see General Municipal Law §50-e [5]; sec cg. Parco v City ofNew York, 160 Ad2d 581 [I st

Dept 1990]; Porcaro, 20 AD3d 357). Accordingly, Petitioner may serve a late notice of claim upon

Transit Respondents for negligence claims that do not include claims based on preventive safety

measures and barricading the subways station. All language related to Respondents failing to prevent

crimes at the station or for failure to place barricades must be stricken for the notice of claim including

but not limited to:

"failing to have adequate security at the l 16th Street Subway station"

"failing to have any security at the 116th Street Subway station"

"failing to implement security measures to prevent crimes such as robberies and assaults at the

I 16th Street Subway station despite the fact that Respondents had knowledge that this station

is located in a high crime area".

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Amending Date on the Notice of Claim

It is also undisputed that the accident occurred late at night on January 5, 2023 rather than on

January 6, 2023 as Petitioner initially believed. The aided report, and Transit's accident reports all

include the date as January 5, 2023. Thus, the part of the Petition seeking to amend the date in the

proposed notice of claim is granted as Transit Respondents will not be prejudiced.

Summons and Complaint

As to the branch_ of the Petition which seeks to deem the proposed summons and complaint

served, same is denied as moot as a Summons and Complaint was filed on or about December 4, 2023.

Pre Action Discovery

As to the branch of the Petition seeking pre-action discovery that is denied in part. Petitioner

as this time has sufficient information to draft a complaint and has submitted a proposed summons and

complaint (see Rann v. Metro. Transp Auth., 22 AD3d 586 [2d Dept 20051; Uddin v l\lev..' York City

Transit Authority, 27 AD3d 265 [1 st Dept 2006]). Respondents however are directed to preserve any

and all accident and/or incident reports concerning the subject incident, including any witness

statements, prepared in the ordinary course of business, as ,vell as any video recordings or photographs

depicting the subject incident at the 116 th Street Station, to the extent such videos, photographs and

documents exist and arc in Respondents' control.

Accordingly, it is hereby

ORDERED that this Petition seeking to serve a late notice of claim upon Transit Respondents

is granted; and it is further

ORDERED that the part of the Petition seeking to serve a late notice of claim and complaint

upon the City Respondent is denied as the City is an out of possession owner and the responsibility for

maintaining the subway system, trains and their operations and any torts arising from the subway

systems is solely the responsibility of Transit Respondents; and it is further

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ORDERED that the proposed notice of claim annexed to the Petition shall be modified as set

forth herein to amend the date of the accident from January 6, 2023 to January 5, 2023 and shall remove

any claims related to the alleged robbery, prevention of crimes, and barricades or prevention in entering

the subway tracks, same shall be served upon all Respondents within 20 days of entry of this Order,

upon which the notice of claim shall be deemed timely served upon Respondents nunc pro tune; and it

is further

ORDERED that that branch of the motion which seeks to compel Transit Respondents to

provide pre-action discovery is denied; and it is further

ORDERED that the part of the Petition seeking preservation of evidence is granted to the extent

that Transit Respondents that manage and controls the subway system, arc directed to preserve accident

and/or incident reports concerning the subject incident, including any witness statements, prepared in

the ordinary course of business, and video recordings or photographs depicting the subject incident at

the 116th Street Station, to the extent such videos, photographs and documents exist and are in its

control; and it is further

ORDERED that the branch of the Petition which seeks to deem the summons and complaint

served is denied as moot; and it is further

ORDERED that upon due notice by Transit Respondents to be scheduled within 90 days or

before from the date of the Order, that the Petitioner shall appear for a statutory hearing on behalf of

Transit, pursuant to the directives of General Municipal Law §50-h.

3/27/2023 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART 0 OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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