Haynes v. City of New York

• Decision Date: 19 March 1984
• Citation: 100 A.D.2d 572,473 N.Y.S.2d 503
• Parties: Junior HAYNES, Appellant, v. The CITY OF NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 503

473 N.Y.S.2d 503

100 A.D.2d 572

Junior HAYNES, Appellant, v. The CITY OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 19, 1984.

Bernard L. Broome, Kew Gardens, for appellant.

Richard K. Bernard, Brooklyn (Lawrence Heisler, John A. Murray and Steve S. Efron, Brooklyn, of counsel), for respondent New York City Transit Authority.

Before BRACKEN, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

By order dated September 29, 1983, this court granted a motion by defendant New York City Transit Authority insofar as it requested reargument of an appeal which resulted in a decision and order of this court, both dated June 13, 1983, reversing an order of the Supreme Court, Queens County, dated September 13, 1982. The order reversed had, inter alia, granted the transit authority's motion to vacate its default. This court reversed the order, on the law and the facts, and denied the transit authority's motion to vacate its default (Haynes v. City of New York, 95 A.D.2d 799, 463 N.Y.S.2d 516). Effective June 21, 1983, CPLR 2005 was enacted to permit a court, in its discretion, to excuse delay or default resulting from law office failure (see L. 1983, ch. 318). Upon reargument, we now hold that pursuant to said statute the transit authority's default should be vacated in the exercise of discretion. Consequently, the order and decision of this court, both dated June 13, 1983 are recalled and vacated, and the following decision is substituted in their stead.

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County, dated September 13, 1982, which (1) granted the motion of defendant New York City Transit Authority to vacate its default, (2) vacated a prior order of the same court, dated January 11, 1982, which, inter alia, granted plaintiff leave to serve a late notice of claim on the New York City Transit Authority and (3) denied plaintiff's motion to serve said late notice of claim.

Order modified, as a matter of discretion, by deleting therefrom the provision denying plaintiff's motion for leave to serve a late notice of claim, and said motion granted. As so modified, order affirmed, without costs or disbursements. Plaintiff's time to serve the late notice of claim is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry.

On July 29, 1980, plaintiff was shot by a transit police officer, who was also shot, in a gun battle. Plaintiff was indicted for the attempted murder of the officer, but, after a jury trial, was acquitted of all charges. As a result of the gun battle, plaintiff sustained serious injuries of the abdomen, stomach, liver and pancreas. He was hospitalized until October, 1980, after which he received continual out-patient care. In June of 1981 he tried to digest solid food and had to return to the hospital because of stomach problems that developed. As of October, 1981, it is claimed that he still could not digest solid food. Apparently, plaintiff was well enough to appear in criminal court in December, 1980.

Plaintiff moved, on October 27, 1981, by order to show cause, for leave to serve a late notice of claim on the defendant New York City Transit Authority (hereinafter defendant) and the City of New York, exactly one year and 90 days after the shooting occurred. Annexed to the motion, which was returnable on November 13, 1981, were a summons and complaint and copies of hospital reports detailing plaintiff's injuries and treatment. The City of New York submitted an affidavit in opposition to plaintiff's motion. However, defendant defaulted. Special Term (KUNZEMAN, J.), by order dated January 11, 1982, denied plaintiff's motion as to the city, but granted it as to defendant.

In March of 1982, defendant moved, inter alia, to vacate its default. Special Term (BUSCHMANN, J.), by order dated September 13, 1982, granted defendant's motion as the default was short in duration and not prejudicial, and defendant had a meritorious defense. It vacated the order dated January 11, 1982 and denied plaintiff's motion to serve a late notice of claim against defendant because plaintiff lacked a sufficient excuse for being...