Williams v. New York City Tr. Auth.

2024 NY Slip Op 31228(U)

• Court: New York Supreme Court, New York County
• Decided: April 10, 2024
• Status: Unpublished

Opinion

Williams v New York City Tr. Auth. 2024 NY Slip Op 31228(U) April 10, 2024 Supreme Court, New York County Docket Number: Index No. 154457/2023 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. 154457/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/10/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART Justice ---------------------------------------------------------------------------------X INDEX NO. 154457/2023 MATTHEW WILLIAMS MOTION SEQ. NO. 001 Petitioner

- V - DECISION AND ORDER ON NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY MOTION

Respondents

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

The following c-filed documents, listed by NYSCEF document number (Motion 001) 2, 13, 14, 15, 16, 17, 18, 19, 20,21, 22,23,24,25,26,27,28,29,30, 31,32 were read on this motion to/for EXTEND - TIME

Petitioner moves pursuant to General Municipal Law §50-e for an extension oftime to serve a

late notice of claim upon Respondents and to deem a late notice of claim served nun pro tune. For the

reasons that follow, the extension is granted but the nun pro tune relief is denied.

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 a public entity (General

Municipal Law §50-c [5]; Pierson v. CityofNew York, 56 NY2d 950 ll 992J). In making such decision

this Court must give great weight to whether the public entity acquired actual notice of the essential

facts of the claim with in ninety (90) days after the date the claim arose or a reasonable time thereafter

(General Municipal Law §50-e [5]; see Pierson v. City of New York_ 56 NY2d 950 [1992]; Bertone

Commissioning v City of New York, 27 AD3d 222 l} st Dept 2006}; Orozco v City oflv'ew York, 200

A.D.Jd 559, 161 N.Y.S.Jd 1 [1st Dept 2021])

Other key factors to consider, include the reason why the Petitioner did not serve the

prerequisite, required, and mandatory notice of claim within the 90-day window and whether granting

15445712023 WILLIAMS, MATTHEW vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 1 of 5 Motion No. 001

[* 1] 1 of 5 INDEX NO. 154457/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/10/2024

the extension will substantially prejudice the public entity (General Municipal Law §50-e [5]; see also

Dubowy v. City of M:.w York, 305 AD2d 320 [I st Dept 2003 J; Porcaro v. City of New York, 20 AD3d

357[ 1st Dept 2005]). Yet the presence or absence of any one factor, except the factor that Respondents

had knowledge of the facts of the claim within ninety (90) days, is not detenninalive or fatal to these

application (see Dubowy,305 J\D2d 320; Matter of Porcaro, 20 AD3d 357).

What is paramount and necessary in deciding these applications is assuring that the public

entities can fairly investigate a meritorious claim against them while the evidence is fresh and available

(see Porcaro, 20 AD3d 357; Orozco, 200 AD3d 559).

Reasonable Fxcuse

Here, Petitioner alleges that on June 13, 2022, while operating his motor vehicle, he was

struck by Respondents' bus near 107 East 125 th Street in Manhattan. As a result, he alleges sustaining

personal injury. Petitioner further alleges that on the date of the accident he obtained a police report

and an MTA/ NYC Transit accident exchange form.

As the accident occurred on June 13, 2022, pursuant to General Municipal Law §50e,

Petitioner had approximately until September 11, 2022, to serve Respondents, or ninety (90) days after

the date the claim arose. Further since September 11, 2022, was a Sunday, Petitioner had until Monday

September 12, 2022 (see N.Y. Gen. Constr. Law§ 25-a).

Yet Petitioner's counsel who was retained within the 90-day window and approximately

within ten (10) days from the date the claim arose, on or about June 23, 2022, did not attempt to serve

Respondents until October 13, 2022. Further, Petitioner's counsel did not move this Court until eleven

( I I) months after the claim arose on May 16, 2 023 when he filed the in st ant Petition.

Petitioner's counsel argues that it did not know that the accident included Respondent's

bus rather he believed the accident included another private vehicle. Petitioner's affidavit of merit

further attests that he was concentrating on his medical treatment and did not know that a notice of

15445712023 WILLIAMS, MATTHEW vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 2 of 5 Motion No. 001

2 of 5 [* 2] INDEX NO. 154457/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/10/2024

claim was required. These arguments are unavailing. As ignorance of the law does not constitute a

legitimate reason and the accident exchange form Petitioner received the date of the accident

unequivocally states that it is from MT A/ NYC Transit (see e.g. Rodriguez v. New York City Health &

Hosps. Corp., 78 AD3d 53 8 [ I st Dept 201 O]; see also Bell v. City of New York, 100 AD3d 990 l2d

Dept 2012]).

Accordingly, Petitioner has not demonstrated a reasonable excuse for the delay in serving

the required notice of claim and the notice of claim served in October 22 is deemed a nullity as it was

not served within the 90-day window and it was done without leave of court (see General Municipal

Law §50-e; McCarty v. City ofl\'ew York, 44 AD3d 447 [1 st Dept 2007 ); see also Wollin.s v. ,Vew York

City Bd. of Educ., 8 AD3d 30 [I st Dept 2004]).

Knowledge of the Claim and Substantial Prejudice

In support that Respondents had notice of the essential facts of Petitioner's claim,

Petitioner submits police report and an MTA/ NYC Transit accident exchange form. Petitioner's

counsel also improperly in his reply papers submits photographs of the accident. The police report

documents an accident between Petitioner's vehicle and Respondents' public bus. Notably the police

report does not make any references that Petitioner reported any injuries or that an ambulance or EMS

were present. The accident exchange form includes the date of the accident, the insurance information

for the bus driver and the address and phone number to the New York City's Transit's Legal

Department. The photographs submitted show damage to Petitioner's vehicle by Respondent's bus.

Upon review, a police report alone is not always sufficient to infer a potential actionable

wrong for personal injury (see e.g. Clarke v. Veolia Transportation Servs., Inc., 204 AD3d 66612d

Dept 2022]; Alexander v. ]\lew York City Transit Auth., 200 J\D3d 509 [1st Dept 2021 J; Evans v. New

York City Hous. Auth., 176 AD2d 22 l[lst Dept 1991]). However, here Respondent's vehicle is a

large bus weighting many tons and the police report establishes, and it is undisputed by the drivers,

15445712023 WILLIAMS, MATTHEW vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 3 of 5 Motion No. 001

3 of 5 [* 3] INDEX NO. 154457/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/10/2024

that a collision occurred between Respondent's large bus and Petitioner's small vehicle. Thus in

light of the police report, the photographs depicting more than minor damage to Petitioner's vehicle

and Petitioner's affidavit attesting that an investigation by Respondents was conducted, this Court

finds that Respondents had sufficient facts to infer committing a potential actionable wrong for more

than just property damage but also for personal injury (see e.g. lhomas v. City o_f]Ve,v York, 118

AD3d 537 15 1 Dept 2014; see also l!arding v Yonkers Central School District, 95 NYS3d 279 [2nd

Dept 20191).

As to any substantial prejudice to Respondents, this Court further finds that since Respondents

had knowledge or the facts constituting potential personal injury claims, Respondents will not be

substantially prejudiced by a late notice of claim as they maintain and operate the bus systems, have

access to the time, date and location or the alleged ace ident, the bus driver, the bus video recordings,

and conducted an initial investigation while all the evidence was freshly available (see Malter o_f

Orozco v City of,\Tew York, 200 AD3d 559 [1st Dept 202 !"I).

Accordingly, while this Court is not pleased with the delay by Petitioner's counsel and

with his unprocedural sound reply submissions, this Court nonetheless finds that the Petitioner has a

legitimate personal injury claim. It further finds that Respondents with its investigation the date of the

accident and with the police report had knowledge to infer a potential personal injury wrong and will

not be prejudiced in mounting a fair defense (see Porcaro, 20 AD3d 357: Orozco, 200 AD3d 559).

It is hereby

ORDERED that this Petition seeking to serve a late notice or claim upon the Respondents is

granted; and it is further

ORDERED that within 20 days from the entry of this order, Petitioner shall serve a copy of

this order with notice of entry upon all parties and the Clerk of the Court (60 Centre Street, Room

154457/2023 WILLIAMS, MA TT HEW vs. NEW YORK CITY TRANS IT AUTHORITY ET AL Page 4 of 5 Motion No. 001

4 of 5 [* 4] INDEX NO. 154457/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/10/2024

1418) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to

mark the court's records; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's

Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and

County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing'' page on the

court's website).

4/10/2024 DATE DEN~INGUEZ, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

15445712023 WILLIAMS, MATTHEW vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 5 of 5 Motion No. 001

5 of 5 [* 5]