Clarke v. The N.Y.C. Transit Auth.

• Docket Number: INDEX No. 157920/2022,MOTION SEQ. No. 001
• Decision Date: 01 March 2023
• Parties: TYRONE CLARKE, Claimant, v. THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY, BUS OPERATOR SIEGREID SEVERIN Respondents.
• Court: New York Supreme Court

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2023 NY Slip Op 30665(U)

TYRONE CLARKE, Claimant, v. THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY, BUS OPERATOR SIEGREID SEVERIN Respondents.

INDEX No. 157920/2022, MOTION SEQ. No. 001

Supreme Court, New York County

March 1, 2023

Unpublished Opinion

RECEIVED NYSCEF: 03/07/2023

MOTION DATE 09/15/2022

DECISION + ORDER ON MOTION

HON DENISE M DOMINGUEZ JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 11, 12, 13, 14, 15 were read on this motion to/for LEAVE TO FILE.

Upon reading the above listed documents, Petitioner TYRONE CLARKE's motion by Order to Show Cause for leave to serve a late notice of claim upon Respondents, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY, BUS OPERATOR SIEGREID SEVERIN is denied.

A court, pursuant to General Municipal Law §50-e, 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-e [5]; CPLR 217-a; Pierson v. City of New York, 56 N.Y.2d 950 [1992]). "The key factors which the court must consider in determining if leave should be granted are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense.... the presence or absence of any one factor is not determinative...." (Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [1^st Dept 2003] citations omitted', see Matter of Morris, 88 A.D.2d 956, 957, 451 N.Y.S.2d 448 [2dDept 1982], aff'd subnom. Morris v. Suffolk Cnty., 58N.Y.2d767,445N.E.2d214 [1982]; See Porcaro v. City of New York, 20 A.D.3d 357, 358, 799 N.Y.S.2d 450 [1^st Dept 2005]).

Upon review, the Claimant has not met his burden in establishing the key factors warranting leave to file a late notice of claim.

As set forth in his "Proposed" Notice of Claim (NYSCEF Doc. #4), the Claimant intends to assert claims sounding in negligence against the Respondents. The Claimant alleges in his Affidavit in Support (NYSCEF Doc. #3), that on January 9,2022, near the intersection of East 96^thStreet and 3^rd Avenue in Manhattan, the Respondent's bus, #4669, struck the Claimant's vehicle as he was attempting to enter it. The Claimant further avers that the Respondents were aware of the incident at the time it occurred as a Supervisor came to the scene of the accident, investigated the accident and then prepared and provided the Claimant with a document, a "Bus Information" form. Claimant also provides a copy of the "Bus Information" form (NYSCEF Doc. #7), which appears to be a photo of a piece of paper with the heading "Bus Information". The form contains information regarding bus #4669 and its operator, Respondent SIEGREID SEVERIN. However, the "Bus Information" document does not identify that an accident, or any other incident, occurred on January 9,2022. The "Bus Information" document does not indicate that the Claimant reported any damages or personal injuries at the time of the incident, nor does it indicate that the Claimant requested or was provided with any medical attention. In fact, the "Bus Information" document contains no information attributed to the Claimant whatsoever; neither his name, telephone number, address, nor even his vehicle information are noted on the document. Thus, even if the "Bus Information" document notified the Respondents of an accident, there is nothing in the document to which advises of the basis of a possible claim sounding in negligence against the Respondents.

The Claimant's Affidavit in Support likewise does not demonstrate that the Respondents were made aware of a possible claim sounding in negligence on January 9, 2022. The Claimant's Affidavit states that his vehicle was struck by bus #4669 as he was attempting to enter it. However, the Claimant does not allege in the affidavit that he reported any damages or injuries to the bus operator or Supervisor at the scene on January 9, 2022. The Claimant does not aver that he requested or was provided with any medical attention at the scene. In fact, the Affidavit in Support does not even aver that the Claimant actually sustained any damages or injuries as a result of the alleged incident.

Mere "... knowledge of the facts underlying an occurrence does not constitute knowledge of the claim. 'What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of 'claim"." (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, 860 [1990], aff'd, 78 N.Y.2d 958, 580 N.E.2d 406 [1991], quoting Thomann v. City of Rochester, 256 N.Y. 165, 172, 176 [1931]; see also Kim v. City of New York, 256 A.D.2d 83, 84, 681 N.Y.S.2d 247 [1998]).

Accordingly the Claimant has not established that the Respondents acquired actual notice of the essential facts of a claim sounding in...