39 Misc.3d 1242(A), 2013-50983, Caldwell v. New York City Transit Authority

Citation39 Misc.3d 1242(A),972 N.Y.S.2d 142
Docket Number2013-50983
Date19 June 2013
PartiesRonald E. CALDWELL d/b/a Eye Candy 329 Lafayette Street New York, New York 10012, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY 130 Livingston Street Brooklyn, New York 11201, Defendant. No. 102451/2011.

Page 1242(A)

39 Misc.3d 1242(A)

972 N.Y.S.2d 142

Ronald E. CALDWELL d/b/a Eye Candy 329 Lafayette Street New York, New York 10012, Plaintiff,

v.

NEW YORK CITY TRANSIT AUTHORITY 130 Livingston Street Brooklyn, New York 11201, Defendant.

No. 102451/2011.

No. 2013-50983

Supreme Court of New York, New York County.

June 19, 2013

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Melissa A. Weinberg, Esq., New York, for plaintiff.

Robert J. Paliseno, Esq., Smith Mazure Director Wilkins Young & Yagerman, PC, New York, for New York City Transit Authority.

Decision and Order

MICHAEL D. STALLMAN, J.

In this action, plaintiff alleges that construction in connection with the " Bleecker Street Subway Project" blocked access to the public sidewalk and entrance to plaintiff's business. Plaintiff maintains that the construction caused revenue to drop by 40%, and caused the business to fall behind on the rent.

Defendant moves to dismiss the complaint on the grounds that plaintiff failed to serve a timely notice of claim upon defendant, and that the action is time-barred. Plaintiff cross-moves to strike defendant's fourth and ninth affirmative defenses, which assert these two grounds. Plaintiff also seeks leave to serve a late notice of claim, nunc pro tunc, and seeks an order striking defendant's answer based on defendant's failure to appear for a deposition.

BACKGROUND

The complaint alleges that plaintiff is engaged in a small retail fashion accessories business called Eye Candy, and that plaintiff's principal place of business is located at 329 Lafayette Street in Manhattan. (Paliseno Affirm., Ex B [Complaint] ¶ 2.) Eye Candy allegedly " specializes in one of a kind contemporary and vintage collect[i]ble fashion accessories." (Paliseno Affirm., Ex A.)

The complaint alleges that, on January 19, 2009, defendant New York City Transit Authority (N.Y.CTA) began blocking access to the public sidewalk and entrance to plaintiff's business, and that the work being conducted by contractors of the NYCTA was related to the Bleecker Street Subway Project. (Complaint ¶¶ 4-5.) According to plaintiff, " [a]lthough the construction and resulting negative impact on Eye Candy began on January 19, 2009, it continued for eleven months and ended on December 1, 2009." ( Id. ¶ 6.) The complaint alleges that, prior to the construction, the NYCTA's representatives stated at community board meetings that access to retail stores on Lafayette Street would never be blocked, and that the walkway for the public would be kept at ten feet wide at all times. ( Id. ¶¶ 8-9.) Plaintiff asserts that these statements were deceptive and misleading, in that the NYCTA allegedly blocked the entrance to his business, and constantly shifted the narrow passageway for pedestrians. ( Id. ¶ 10.) The complaint alleges that, because of the ongoing construction, plaintiff's business " dropped by 40% compared to the previous 11 years of business", and that " [d]amage caused by the [NYCTA] resulted in revenue losses to Eye Candy ... in the amount of $65,594.71." ( Id. ¶¶ 13-14.)

In addition, the complaint alleges that construction damaged Eye Candy's property. The arm of digging machinery allegedly damaged Eye Candy's banner/sign. ( Id. ¶ 16.) Black soot raised by construction allegedly damaged and ruined vintage and antique merchandise. ( Id. ¶ 17.)

It is undisputed that the NYCTA received a notice of claim from plaintiff. A form entitled, " Claim Against NYC Transit for Property Damage", dated February 26, 2010, was apparently signed by plaintiff, and bears a notary's stamp, and purportedly attached to this form was a letter dated February 23, 2010, which begins, " Herewith is notification of claim against NYC Transit for property damage and loss of business damage sustained in the following manner...." (Paliseno Affirm., Ex A.) Both the form and the first page of the February 23, 2010 letter each bear two date/time stamps next to each other:

MTA NYC TRANSITLAW DEPARTMENT

2010 APR -8 PM 12:54

RECEIVED

CLAIMS PROCESSING UPSReceived by Certified Mail [initials]

MTA NYC TRANSIT

LAW DEPARTMENT

2010 MAR -1 AM 11:55

RECEIVED

CLAIMS PROCESSING

( See Paliseno Affirm., Ex A.) Defendant acknowledges that it received this notice of claim on March 1, 2010. (Paliseno Affirm. ¶ 4.)

On February 28, 2011, plaintiff commenced this action. By a preliminary conference order dated June 7, 2012, defendant's deposition was scheduled for August 2, 2012. (Paliseno Affirm., Ex D.) By a so-ordered stipulation dated November 8, 2012, defendant's deposition was rescheduled for December 18, 2012. (Weinberg Affirm., Ex A.) It appears from an affidavit of service that, on December 5, 2012, defendant served the instant motion to dismiss the action.

DISCUSSION

Defendant moves to dismiss the complaint on the grounds that plaintiff failed to serve a timely notice of claim upon defendant, and that the action is time-barred. Defendant takes the position that plaintiff's claim arose on January 19, 2009. Consequently, defendant maintains that the notice of claim that it admittedly received in March 2010 was untimely, and that the action was commenced after the limitations period had run.

In opposition, plaintiff argues that defendant is estopped from raising as defenses the statute of limitations or an untimely notice of claim. Plaintiff asserts that he called Sharon Stevens, a Claims Processing Manager allegedly employed by defendant, " for the specific purpose of finding out the correct procedure for filing a claim against the TA", and that Ms. Stevens provided him with a claim form by a letter dated January 21, 2009. (Weinberg Affirm., Ex B [Caldwell Aff.] ¶ 8.) Plaintiff claims that he was not sure what the phrase " the claim arose" on the claim form meant, and that he again called Ms. Stevens " specifically to obtain clarification and guidance...." ( Id. ) According to plaintiff,

" I was prepared to immediately file any form required by the TA to get compensation for my losses. However Ms. Stevens told me to wait until construction was completed in front of my business and that I would have 90 days from that time to file the claims forms. Based solely on Ms. Steven's [ sic ] advice and representations, I postponed filing the Notice of Claim, although I was at all times ready to do so."

( Id. ¶ 9.)

The requirements for a notice of claim and the statute of limitations both establish deadlines, but they are fundamentally different in nature. For a notice of claim, the clock " starts to run upon the accrual of the claim, that is, the moment a wrong becomes actionable. A statute of limitations speaks to the latest point in time that an action for a wrongful act may be commenced." ( Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 40 [1st Dept 2009].) CPLR 3018(b) requires a defendant to plead the statute of limitations as an affirmative defense, and " CPLR 3211(e) explicitly provides that an objection or defense based on the statute of limitations is waived unless raised in a responsive pleading or in a pre-answer motion to dismiss." ( Horst v. Brown, 72 A.D.3d 434 [1st Dept 2010].) By contrast, a defendant is not required to raise the late service or lack of service of a notice of claim as an affirmative defense. ( Singleton v. City of New York, 55 A.D.3d 447 [1st Dept 2008]; Reaves v. City of New York, 177 A.D.2d 437 [1 Dept 1991].) Service of a notice of claim " is a condition precedent to the commencement of the action in the same way as is the service of a summons." ( Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 6 [1967]; see e.g. Bennett v. New York City Tr. Auth., 4 A.D.3d 265 [1st Dept 2004].) Given these differences, each defense should be considered separately.

I.

As a threshold matter, the Court must discern the possible legal theory or theories under which the allegations might fall to determine the applicable statute of limitations. Plaintiff does not specifically name a legal theory or a cause of action in the complaint under which the allegations should fall or be considered. In the cross motion, plaintiff characterizes the action as seeking damages for property damage and loss of revenue " caused by the tortious interference of access to plaintiff's place of business by the TA...." (Weinberg Affirm. ¶ 6.) The allegations of blocked access might fall under the theory of a private nuisance, which sounds in tort. ( See Volunteer Fire Assn. of Tappan v. County of Rockland, 101 A.D.3d 853 [2d Dept 2012] [construction of a raised curb in front of the plaintiff's firehouse that materially impeded access to and from its firehouse constituted trespass and private nuisance].)

Public Authorities Law § 1212(2) provides that, " Except in an action for wrongful death, an action against the authority founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based...." However, Public Authorities Law § 1212(1) requires that the complaint " contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority...." Thus, " it has been held that the effect of such a statute is to extend the general period of limitation by an additional 30 days." ( Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 5 [1967]; see Burgess v. Long Is. R.R. Auth., 79 N.Y.2d 777, 778 [1991][" This stay' of 30 days is not counted as part of the limitations period" ].) Therefore, for the purposes of determining whether an action founded on tort against NYCTA (except an action for wrongful death) is time-barred, the limitations period is effectively one year and 120 days, instead of one year and 90 days.

The complaint alleges that, on January 19, 2009, defendant New York City Transit Authority (N.Y.CTA) began blocking access to the...

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