Negron v. Manhattan & Bronx Surface Transp. Operating Auth.

• Jurisdiction: New York,United States
• Parties: IDEL NEGRON, JOSEPH RIVERA Petitioners, v. MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY, Respondents.
• Citation: 2024 NY Slip Op 30209 (U)
• Decision Date: 03 January 2024
• Court: New York Supreme Court
• Docket Number: Index No. 154372/2023,MOTION SEQ. No. 001

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2024 NY Slip Op 30209(U)

IDEL NEGRON, JOSEPH RIVERA Petitioners, v. MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY, Respondents.

Index No. 154372/2023, MOTION SEQ. No. 001

Supreme Court, New York County

January 3, 2024

Unpublished Opinion

PRESENT: HON. DENISE M. DOMINGUEZ Justice

DECISION + ORDER ON MOTION

Denise M. Dominguez Judge:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 13, 14, 15, 16, 18, 19,20 were read on this motion to/for LEAVE TO FILE.

Upon the foregoing documents, and following oral argument, the order to show cause to serve a late notice of claim on Respondent MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY ("MABSTOA") is granted and upon granting the order to show cause, the Petition is dismissed.

The underlying incident which gives rise to the within application concerns Petitioner NEGRON's claim that the Petitioner sustained personal injuries when the bus in which they were a passenger stopped short on March 28, 2022 while traveling on 86^th Street, between Park Avenue and Madison Avenue in Manhattan. The subject bus is identified as bus number 5449 on the M86 route. Petitioner RIVERA has a loss of services claim. (NYSCEF Doc. 6).

The Petitioners seek to serve a late notice of claim on Respondent MABSTOA, alleging that they failed to include MABSTOA as a possible owner/operator of the subject bus when the initial notice of claim was served on The City of New York ("the City"), New York City Transit Authority ("NYCTA") and the Metropolitan Transportation Authority ("MTA"), on or about June 2, 2022 (NYSCEF Doc. 6).

As the incident occurred on March 28, 2022, the Petitioner had until June 26, 2022 to timely file a notice of claim pursuant to General Municipal Law §50-e.

In support of the motion, Petitioner NEGRON's September 19 2022 50-h hearing transcript, conducted on behalf of the City, and January 24, 2023 statutory hearing, conducted on behalf of the NYCTA and MTA, are submitted (NYSCEF Doc. 2 3). An affidavit of merit on behalf of Petitioner NEGRON is attached to the Petition, and is not separately efiled (NYSCEF Doc. 1). Petitioners also submit the previously filed notice of claim and the proposed notice of claim (NYSCEF Doc. 6, 10). Following the filing of the within motion, and after the Order to Show Cause had been signed, and without leave of Court, the Petitioners filed the purported results of a FOIL search received regarding this incident (NYSCEF Doc. 16). Following the filing of the purported accident report, Respondent MABSTOA filed its affirmation in opposition (NYSCEF Doc. 18). As MABSTOA had the opportunity to review and respond to the purported accident report, it will be considered by this Court. However, without leave of Court, the Petitioners filed a reply affirmation to MABSTOA's opposition (NYSCEF Doc. 20). As the Petitioners did not request, and were not granted permission by this Court to submit a reply affirmation, same will not be considered by this Court.

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]).

In evaluating whether leave to file a late notice of claim should be granted, "[t]he key factors which the court must consider... 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... and the absence of a reasonable excuse is not fatal." (Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [1^st Dept 2003] internal citations omitted; see Matter of Morris, 88 A.D.2d 956,957, 451 N.Y.S.2d 448 [2d Dept 1982], affd sub nom.; See Morris v. Suffolk Cnty., 58 N.Y.2d 767, 445 N.E.2d 214 [1982]; See Matter of Porcaro v. City of New York, 20 A.D.3d 357, 799 N.Y.S.2d 450 [1^st Dept 2005]).

Great weight must be given to whether the public entity acquired actual knowledge of the essential facts constituting the claim within ninety (90) days or within a reasonable time thereafter (General Municipal Law §50-e [5]; see Bertone Commissioning v City of New York, 27 A.D.3d 222 [1^st Dept 2006]; see Matter of Orozco v City of New York, 200 A.D.3d 559, 161 N.Y.S.3d 1 [1st Dept 2021], leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022]); However the 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 the '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, 681 N.Y.S.2d 247 [1st Dept 1998]).

Additionally, it is the burden of the petitioner to demonstrate that the late notice of the claim will not be substantially prejudicial. (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]). "Once there has been an initial showing regarding the lack of substantial prejudice toward the public corporation or municipality, the public corporation or municipality is required to make a 'particularized or persuasive showing that the delay caused them substantial prejudice'." (Orozco v. City of New York, 200 A.D.3d 559, 563, 161 N.Y.S.3d 1 (2021), leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022], quoting Lawton v Town of Orchard Park, 138 A.D.3d 1428, 1428 [4th Dept 2016]; see (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]).

Upon review, the Petitioner met the burden in establishing the key factors warranting leave to file a late notice of claim against the MABSTOA.

Here, Petitioner NEGRON, avers in the affidavit of merit, that while a passenger on an M86 bus in Manhattan on Mach 28, 2022, the bus stopped short while traveling along 86^th Street, causing her to fall to the floor of the bus, sustaining injury. Petitioner NEGRON further avers that following the accident, she was transported from the scene by ambulance. (NYSCEF Doc. 1). As per Petitioner NEGRON's 50-h hearing transcript, the subject bus came to a stop when the vehicle in front of the bus same to a sudden stop (NYSCEF Doc. 2).

In support of the Petition, the Petitioners argue that following their initial investigation, it was concluded that the appropriate parties, who were the likely owner/operator of the subject bus were the City, NYCTA and MTA. The initial notice of claim asserts claims sounding in negligence against the City, NYCTA and MTA based upon their ownership, operation, and control of the subject bus. In March of 2023, it was apparently realized for the first time that MABSTOA was not concluded in the initial notice of claim. However, no explanation is provided for why MABSTOA was not included in the initial notice of claim. Nor is any explanation provided as to why, nearly a year after the accident was it believed that MABSTOA was a viable party as a potential owner/operator of the subject bus. Ignorance of the law (see Rodriguez v. New York City Health & Hosps. Corp, 78 A.D.3d 538, 911 N.Y.S.2d 347 [1^st Dept 2010]) or law office failure (Santiago v. New York City Transit Auth., 85 A.D.3d 628, 925 N.Y.S.2d 500 [1^st Dept 2011]) are not reasonable excuses for untimely service of the notice of claim. Accordingly, the Petitioners to not show any excuse for failing to include MABSTOA in the initial notice of claim, let alone a reasonable one. However, "the absence of a reasonable excuse is not fatal." (Dubowy 305 A.D.2d at 321, supra).

Here the Petitioners argue that MABSTOA had actual knowledge of the underlying facts of the incident giving rise to the claim when it occurred because the accident was investigated that same day and as Petitioner NEGRON was transported from the scene by...