Shaw v. Long Island R.R. Co.

• Decision Date: 21 November 2017
• Docket Number: 16-cv-6972 (BMC)
• Court: U.S. District Court — Eastern District of New York
• Parties: ASTON SHAW, Plaintiff, v. LONG ISLAND RAILROAD COMPANY d/b/a MTA LONG ISLAND RAILROAD, METROPOLITAN TRANSIT AUTHORITY, and MARILYN KUSTOFF, in her personal and official capacity, Defendants.

ASTON SHAW, Plaintiff, v. LONG ISLAND RAILROAD COMPANY d/b/a MTA LONG ISLAND RAILROAD,METROPOLITAN TRANSIT AUTHORITY,and MARILYN KUSTOFF, in her personal and official capacity, Defendants.

16-cv-6972 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 21, 2017

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

In this employment-discrimination action, defendants Long Island Railroad Company and Marilyn Kustoff move to dismiss plaintiff's claims under the New York State Human Rights Law, New York Executive Law § 296, and New York City Human Rights Law, New York Administrative Code § 8-107, based on plaintiff's failure to comply with New York Public Authorities Law § 1276. PAL § 1276 is one of a number of state statutes by which the State, on its own behalf or on behalf of municipalities, counties, wholly-owned state corporations, or other state entities, has conditioned its waiver of sovereign immunity on plaintiff's compliance with certain notice, pleading, or pre-suit claim requirements. Here, because plaintiff failed to make a pre-suit demand on defendants 30 days before commencing this action as required by PAL § 1276(1), his claims under the Human Rights Laws are dismissed.

I. Statutory Background

PAL § 1276 is entitled "Actions against the authority." The "authority" refers to the Metropolitan Transit Authority; New York courts have interpreted the term to include the MTA's subsidiary (defendant here), the Long Island Rail Road Company. See Andersen v. Long Island R.R., 88 A.D.2d 328, 329, 453 N.Y.S.2d 203 (2nd Dep't 1982), aff'd, 59 N.Y.2d 657, 463 N.Y.S.2d 407 (1983). The first two subsections of PAL § 1276 provide:

(1) As a condition to the consent of the state to such suits against the authority, in every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof.

(2) An action against the authority founded on tort, except an action for wrongful death, shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been served on the authority within the time limited by and in compliance with all the requirements of section fifty-e of the general municipal law. An action against the authority for wrongful death shall be commenced in accordance with the notice of claim and time limitation provisions of title eleven of article nine of this chapter.

I will refer to subsection (1) as the "demand" provision, and subsection (2) as the "notice-of-claim" provision. These two types of provisions appear in various forms in other New York statutes addressing suits against governmental or governmentally-owned entities.

Subsection (1), the demand provision, applies to "every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death." This subsection appears to apply to every form of action other than one for injunctive or other equitable relief. It imposes a pleading requirement: the plaintiff must plead that 30 days have passed since his "demand" or "claim" was "presented to a member of the authority" or other "designated officer."

Subsection (2), the notice-of-claim provision, is narrower. First, it applies only to actions "founded in tort," and addresses wrongful death claims separately from other torts.¹ As to all tort actions except those for wrongful death, § 1276(2) imposes both a statute of limitation - the action must be commenced within "one year and ninety days" after the claim accrues - and incorporates by reference the procedural requirements for a formal "notice of claim" in New York General Municipal Law § 50-e. GML § 50-e includes its own limitations period for when a notice of claim must be served, provides for methods of service, and lists what a notice of claim must contain. GML § 50-e states that its requirements apply to "any case founded upon tort" where a notice of claim is required for proceeding against a public corporation.

PAL § 1276(2) is not the only statute that incorporates GML § 50-e by cross-reference; GML § 50-e also appears in other substantive state statutes that impose conditions to suit as to certain state entities. One of those is GML § 50-i, which permits a plaintiff to sue a "city, county, town, village, fire district, school district, or any agent or employee thereof" for certain tort claims,² if certain requirements, including those in GML § 50-e, are met. Others include County Law § 52 (claims against counties) and New York Education Law § 6224 (claims against the City University of New York and its subsidiaries). Like PAL § 1276, Education Law § 6224 has a demand provision and a notice-of-claim provision, but the order of those two subsections is reversed.

Based on the plain language of PAL § 1276 subsections (1) and (2), I conclude that they impose different prerequisites and address different types of cases: subsection (2) requires a formal notice of claim for tort actions, while subsection (1) applies a less stringent demand requirement to all actions, tort or otherwise. Significantly, the detailed notice-of-claim procedures in GML § 50-e, incorporated by reference in subsection (2), are completely absent from subsection (1).

I think this difference matters. When the New York legislature wanted to apply specific, formal requirements for the content and service of a notice of claim, it knew how to do that and did it expressly - but only as to tort claims. Subsection (1) uses broader language; a "demand" is not necessarily the formal notice of claim required in subsection (2). The "demand" in subsection (1) is a superset of subsection (2).

This was thoroughly explained in Andersen in the context of addressing the scope of a 1976 amendment to subsection (6) of PAL § 1276. As amended, subsection (6) provides that

[t]he provisions of this section which relate to the requirement for service of a notice of claim shall not apply to a subsidiary corporation of the authority. In all other respects, each subsidiary corporation of the authority shall be subject to the provisions of this section as if such subsidiary corporation were separately named.

N.Y. Pub. Auth. Law § 1276(6) (McKinney). The reason for this amendment, the Andersen Court explained, was that plaintiffs often did not know whether a particular corporate defendant was in fact a subsidiary of the Authority and therefore subject to the notice-of-claim provision in PAL § 1276(2). Before the amendment to subsection (6), a plaintiff would be time-barred if he failed to serve the subsidiary corporation separately from the Authority within the short window for negligence claims. To avoid this, subsection (6) dispensed with the need to file a notice of claim against a subsidiary.

The remaining question in Andersen, however, was whether the amendment to subsection (6) also dispensed with the need to plead that at least 30 days prior to commencing the action, the plaintiff had made a demand on the defendant which the defendant had not satisfied, as provided in subsection (1). The Appellate Division held that plaintiffs are still required to comply with the demand pleading requirement in subsection (1):

[T]he 1976 amendment to subdivision 6 of section 1276 refers expressly only to "[t]he provisions of this section which relate to the requirement for service of a notice of claim" (emphasis supplied). Plaintiffs herein seem to be arguing that this amendment also impliedly repealed the 30-day demand rule in actions against subsidiary corporations of public authorities. Implied repeals are not favored by the courts, and should be found only where the legislative intent is so clear, or two statutory provisions are so mutually inconsistent, that the only possible conclusion is that an earlier enactment was in fact repealed by a later enactment.

Andersen, 88 A.D.2d at 337-38, 453 N.Y.S.2d at 209. The Appellate Division also quoted with approval the following language from a lower court case:

On the other hand, subdivision 1 of section 1299-p of the Public Authorities Law³ which provides the 30-day prohibition against suit is founded on an entirely different legislative concern. Quite obviously, not every occurrence gives rise to a claim for tort liabilities. However, where demand or notice of claim is made, the 30-day statutory prohibition against institution of suit, affords the authority an opportunity to conduct a preliminary investigation and to evaluate the claim. If deemed valid, an 'adjustment or payment thereof' may be made by the authority. Thus the authority is relieved of the legal costs involved in making responsive pleadings and in preparing for litigation, and speedy compensation is made to the injured party.

The condition precedent of notice and the statutory prohibition against suit are not, therefore, inviolably married. In dispensing with the former, as it relates to subsidiary corporations of the authority, the Legislature did not, a fortiori, intend to repeal the latter.

Andersen, 88 A.D.2d at 339, 453 N.Y.S.2d at 209-10 (quoting Niemczyk v. Pawlak, 98 Misc. 2d 532, 535, 414 N.Y.S.2d 285, 288 (Sup. Ct. Erie Co. 1979)).

In sum, putting aside wrongful-death claims, the differences between PAL § 1276 subsections (1) and (2) are as follows: (i) subsection (1) applies to all damages claims, whether tort actions or not; (ii) as against a subsidiary like the LIRR, non-tort claimants must plead that 30 days have elapsed since their "demand" or "claim"; and (iii) the "demand" or "claim" required by subsection (1)...