Konner v. N.Y.C. Transit Auth.

• Court: New York Supreme Court — Appellate Division
• Citation: Konner v. N.Y.C. Transit Auth., 143 A.D.3d 774, 39 N.Y.S.3d 475, 2016 N.Y. Slip Op. 6683 (N.Y. App. Div. 2016)
• Decision Date: 12 October 2016
• Parties: Lori Jo KONNER, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent, et al., defendant.

143 A.D.3d 774

39 N.Y.S.3d 475

2016 N.Y. Slip Op. 06683

Lori Jo KONNER, appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, respondent, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2016.

Amirali Y. Haidri, Blauvelt, NY, for appellant.

Lawrence Heisler, Brooklyn, NY, for respondent.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated March 14, 2014, which granted the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff failed to serve a timely notice of claim pursuant to General Municipal Law § 50–e.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against it is denied.

On January 1, 2012, the plaintiff allegedly sustained injuries when the doors of a subway train closed on her hand at the Coney Island station on the “F” line in Brooklyn. Within 90 days of the accident, the plaintiff's attorney served a notice of claim together with a cover letter addressed to “Mr. Joseph J. Lhota, Chairman and Executive Office, [Metropolitan Transportation Authority]” at 347 Madison Avenue, New York, NY, 10017–3739. The notice of claim stated the nature of the claim and the time when, the place where, and the manner in which the claim arose. The notice of claim and cover letter were sent via certified mail on March 15, 2012, and there is no dispute that Lhota and/or the Metropolitan Transportation Authority (hereinafter the MTA) received the documents.

Approximately a month after the notice of claim was served, the plaintiff's attorney received a letter dated April 12, 2012, in reference to the claim, with a “TA” claim number, stating: “By virtue of the power conferred on the New York City Transit Authority by [Public Authorities Law § 1200 et seq., as amended], the claimant is hereby required to appear and be sworn at the Office of the Authority, Room 11127, 130 Livingston Street, Brooklyn[,] New York on May 25, 2012 at 9:30 AM and testify as to all facts relative to the above claim presented by [the claimant] to the Authority” (emphasis added). This correspondence bore no letterhead, and did not indicate whether it was from the MTA or the New York City Transit Authority (hereinafter the NYCTA). Although this letter directed the plaintiff to appear at the “office of the Authority,” it did not state which “Authority”—the MTA or the NYCTA.

The plaintiff's General Municipal Law § 50–h hearing was subsequently conducted on June 11, 2012, at 130 Livingston Street, Brooklyn, before an NYCTA examiner. During the hearing, the examiner requested authorizations for “the Transit Authority,” and directed a physical exam as deemed necessary by “the Transit.” Thereafter, on September 12, 2012, the NYCTA forwarded the transcript of the General Municipal Law § 50–h hearing to the plaintiff's attorney. The letterhead on the cover letter contained an MTA logo along with the words “New York City Transit.”

Since the claim was not adjusted or settled, the plaintiff timely filed and served a summons and complaint naming the NYCTA and Robin Roe, a gender neutral fictitious name, as defendants. The complaint alleged that a timely notice of claim was served upon the NYCTA and that a General Municipal Law § 50–h hearing was conducted. The complaint set forth a cause of action sounding in negligence, consistent with the notice of claim. In its answer, the NYCTA generally denied the allegations in the complaint, without specific reference to the notice of claim.

The NYCTA moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff failed to serve it with a notice of claim as required by General Municipal Law § 50–e and Public Authorities Law § 1212. In opposition, the plaintiff argued that the NYCTA should be equitably estopped from seeking dismissal of the complaint based on her alleged failure to properly serve the NYCTA with the notice of claim because its handling of her claim misled her into believing that her notice of claim had been accepted by the NYCTA, and that it was unnecessary to seek leave to serve a late notice of claim upon that entity. The Supreme Court granted the NYCTA's motion, concluding that the plaintiff failed to serve the notice of claim upon the NYCTA pursuant to General Municipal Law § 50–e.

As a general matter, “[t]imely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the [NYCTA]” (Hunte v. New York City Tr. Auth., 119 A.D.3d 735, 735–736, 989 N.Y.S.2d 326 ; see General Municipal Law § 50–e[1][a] ; Public Authorities Law § 1212[2] ; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312 ), and service of the notice of claim must be made within 90 days after the claim arises, unless the court grants an application to extend that time period (see General Municipal Law § 50–e[1][a] ; [5]; see generally Matter of Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d 870, 872, 6 N.Y.S.3d 294 ). An application to extend the time to serve a notice of claim may not be made after the expiration of the one–year–and–90–day statute of limitations, unless the statute of limitations has been tolled (see General Municipal Law § 50–e[5] ; Public Authorities Law § 1212[2] ; Pierson v. City of New York, 56 N.Y.2d 950, 954–956, 453 N.Y.S.2d 615, 439 N.E.2d 331 ; Attallah v. Nassau Univ. Med. Ctr., 131 A.D.3d 609, 15 N.Y.S.3d 197 ).

Although the MTA and NYCTA share an affiliation, they are separate entities (see Mayayev v. Metropolitan Transp. Auth. Bus, 74 A.D.3d 910, 911, 904 N.Y.S.2d 84 ; Matter of New York Pub. Interest Research Group Straphangers Campaign v. Metropolitan Transp. Auth., 309 A.D.2d 127, 134, 763 N.Y.S.2d 13 ; compare Public Authorities Law § 1262with Public Authorities Law § 1202[1] ). Thus, service of a notice of claim upon the MTA does not satisfy the condition precedent of serving a notice of claim upon the NYCTA (see Polsky v. Metropolitan Transp. Auth., 37 A.D.3d 243, 829 N.Y.S.2d 102 ). However, a municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Mohl v. Town of Riverhead, 62 A.D.3d 969, 970, 880 N.Y.S.2d 313 ; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68 ). “By applying the doctrine of equitable estoppel to notice of claim situations, the courts may insure that statutes like section 50–e of the General Municipal Law, do not become ‘a trap to catch the unwary or the ignorant’ ” (Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 668, 382 N.Y.S.2d 18, 345 N.E.2d 561, quoting Sweeney v....