Bennett v. New York City Transit Authority

• Decision Date: 26 February 2004
• Docket Number: 1852.
• Citation: 4 A.D.3d 265,772 N.Y.S.2d 320,2004 NY Slip Op 01235
• Parties: DIANE BENNETT, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 265

772 N.Y.S.2d 320

2004 NY Slip Op 01235

DIANE BENNETT, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.

1852.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 26, 2004.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered July 26, 2002, which granted defendant's motion for summary judgment and dismissed the complaint, reversed, on the law, without costs, the motion denied, the complaint reinstated and the matter remanded for further proceedings.

On May 1, 1998, plaintiff slipped and fell on the southbound platform of the Franklin Street IRT subway station, sustaining injuries to her knee and wrists. Plaintiff filed a timely notice of claim pursuant to General Municipal Law § 50-e, in which she stated that her fall was caused by "a slippery and defective condition . . . consist[ing] of an unreasonably slippery and slick wet floor/ground within the station resulting from the negligent installation of tile . . . [which was] unusually slippery and slick, especially when wet, and . . . inappropriate for pedestrian traffic."

At her General Municipal Law § 50-h hearing, plaintiff testified that, after going through the turnstile, she "slipped and fell on the slippery subway tiles there." The Hearing Examiner did not ask plaintiff about the slippery condition or its source. The Hearing Examiner did ask plaintiff if it was raining on the day of the accident, and plaintiff responded that it was. The Hearing Examiner did not ask plaintiff anything further about the effect, if any, of the rain on the condition of the subway platform.

Plaintiff's complaint recites boilerplate language that defendant was responsible for maintaining the station in a reasonably safe condition, that her slip and fall was a result of defendant's negligence in its maintenance and operation of the station, "including the installation of floor tiles." In her bill of particulars, plaintiff described the bases of defendant's alleged negligence, including that it "caus[ed] or allow[ed] leaks to exist" at the Franklin Street subway station.

In her deposition, plaintiff testified that it was raining on the day of the accident; that the upper stairway was wet but the lower stairway, which was covered, was dry; and that, right after she stepped through the turnstile, she slipped and fell into a puddle of water about three feet wide. She further testified that, when she recovered from her injuries and returned to work six months later, she observed that the floor in the Franklin Street station was wet every time it rained and that the rain leaked through the station's ceiling.

Defendant's Franklin Street station supervisor testified in his deposition that he inspected the station soon after the accident and found that the area was dry. Transit Authority logbooks from mid-January through the beginning of April 1998 catalog the existence of "water conditions" in the station, including on the southbound platform and, in some instances, the existence of water "oozing" through cracks in the walls.

Defendant moved for summary judgment, asserting that plaintiff's notice of claim was deficient because she did not identify the source of the alleged puddle on the floor of the station and that plaintiff's allegation that her fall was caused by the wet, slippery condition of the station floor was insufficient, as a matter of law, to establish defendant's liability.

The motion court granted defendant's motion on the grounds that plaintiff's notice of claim "did not adequately advise NYCTA that plaintiff was attributing her accident to an accumulation of water that had leaked onto the platform." The court also found that, although plaintiff had claimed to have fallen because the floor was wet, the accident report by the station supervisor shortly after the accident occurred stated that the area was clean and dry.

A notice of claim is a condition precedent to bringing a tort claim against a municipality (General Municipal Law § 50-e [1] [a]). Among other things, the notice must identify the claimant, state the nature of the claim and describe "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e [2]; see Brown v City of New York, 95 NY2d 389, 393 [2000]; O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]). A notice of claim is sufficient if it includes information that enables a municipal agency to investigate and evaluate the merits of a claim (see Brown, 95 NY2d at 393; O'Brien, 54 NY2d at 358). "Reasonably read, [General Municipal Law § 50-e] does not require . . . `literal nicety or exactness'" (Brown, 95 NY2d at 393 [citations omitted]).

In this case, the notice of claim properly identified plaintiff as the claimant, stated when and where the accident occurred and described the defective condition that allegedly caused her to slip and fall as "an unreasonably slippery and slick wet floor." This information was certainly sufficient to enable the defendant Transit Authority to investigate and evaluate plaintiff's claim. Plaintiff was not required to identify the source of the water that was alleged to be on the floor, as that was well within defendant's investigatory abilities, not only by observation, but also by review of its own internal records. Moreover, contrary to defendant's contention, plaintiff's subsequent testimony that the water—which her notice of claim explicitly stated was on the station floor where she fell—came from leaks in the station's ceiling does not constitute a change in her theory of the case.

In addition, although not explicit, the motion court appears to have determined that there were no disputed issues of fact that would preclude granting summary judgment to defendant. However, there is clearly a dispute between plaintiff and the Transit Authority's station manager as to the condition of the floor. Furthermore, the statement in the affirmation of defendant's attorney that "it is obvious that any wetness in the station was occasioned by passengers tracking in the water from the rainy outdoors" is not evidence, let alone dispositive evidence and of the source of the water on the station floor.

Concur — Buckley, P.J., Tom and Rosenberger, JJ.

Saxe and Sullivan, JJ., dissent in a memorandum by Sullivan, J., as follows:

The majority misstates the basis of defendant Transit Authority's (TA) claim of deficiency with respect to the notice of claim. The TA never argued that the notice of claim failed to identify the source of the alleged puddle on the station floor on which she fell. Rather, it argued that the notice of claim was completely devoid of any assertion to support plaintiff's current claim that the alleged wetness on the floor was the result of a leak in the station. In granting summary judgment dismissing the complaint, Supreme Court correctly recognized the issue, holding, properly so, that the "notice of claim did not adequately advise NYCTA that plaintiff was attributing her accident to an accumulation of water that had leaked onto the platform." I agree and would affirm the order dismissing the complaint.

Plaintiff alleges that she slipped and fell at approximately 5:15 P.M. on May 1, 1998 at the Franklin Street subway station in Manhattan. She was carrying an umbrella as it had been raining "heavily" during the ten to fifteen minutes it took her to walk to the station. Plaintiff entered the station, walked through the turnstile and after taking two steps "slipped and fell on the slippery tiles there." When a TA employee investigated the accident, she noted that "customer claimed she slipped and fell on the slippery tiles on the platform." Plaintiff did not know what caused the accumulation of water.

In her notice of claim, dated June 19, 1998, plaintiff alleged that she fell "due to a slippery and defective condition located approximately immediately beyond the turnstiles" of the Franklin Street station. According to the notice: "The defective condition consisted of an unreasonably slippery and slick wet floor/ground within the station resulting from the negligent installation of tile unsuitable for a public subway station. The defendant had actual and constructive notice that the subject tiles were unusually slippery and slick, especially when wet, and were inappropriate for pedestrian traffic."

In more specific terms, the notice of claim stated that the TA's negligence included: "[F]ailing to properly clean, mop and/or wipe said condition and area; . . . failing to provide and install skid resistant flooring; . . . failing to provide and install flooring with an acceptable and safe `coefficient of friction'; . . . failing to remove the defective and slippery tile; . . . failing to discontinue the use and installation of the defective and slippery tile . . . and . . . causing and creating the dangerous and defective condition."

At her statutory hearing on August 28, 1998, plaintiff testified that it was raining and that after reaching the station, "I went through the turnstile and two steps after I slipped and fell on the slippery tiles there."

In her complaint, dated July 28, 1999, plaintiff alleged that her accident was the result of the TA's "ownership, operation, management, maintenance, construction, installation, repair and control of the aforesaid public subway station and surrounding areas, including the installation of floor tiles, and the [d]efendant was otherwise negligent, careless and reckless." In her bill of particulars, dated February 3, 2000, long after the statute of limitations had run, plaintiff again alleged the varying ways in which the TA was responsible for the accident, including "negligently installing floor tiles unsuitable for a public subway station; in improperly conducting safety surveys; . . . in failing to provide and install flooring with an acceptable and safe `coefficient of friction'" and other ways specifically related to the...