Talavera v. N.Y.C. Transit Auth. Co.

• Docket Number: Index No. 155051/2023,Motion Seq. No. 001
• Decision Date: 04 January 2024
• Citation: 2024 NY Slip Op 30213 (U)
• Parties: ANGEL TALAVERA, Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY COMPANY, METROPOLITAN TRANSIT AUTHORITY Respondents.
• Court: New York Supreme Court

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2024 NY Slip Op 30213(U)

ANGEL TALAVERA, Petitioner,
v.
NEW YORK CITY TRANSIT AUTHORITY COMPANY, METROPOLITAN TRANSIT AUTHORITY Respondents.

Index No. 155051/2023, Motion Seq. No. 001

Supreme Court, New York County

January 4, 2024

Unpublished Opinion

DECISION + ORDER ON MOTION

DENISE M DOMINGUEZ, JUSTICE

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, 21, 22 were read on this motion to/for LEAVE TO FILE.

Upon the foregoing documents, the Petition to serve a late notice of claim on the Respondents NEW YORK CITY TRANSIT AUTHORITY COMPANY ("NYCTA") and METROPOLITAN TRANSIT AUTHORITY ("MTA") is granted.

The underlying incident which gives rise to the within application concerns Petitioner ANGEL TALAVERA'S claim that the Petitioner sustained personal injuries on February 27, 2023 when the Petitioner allegedly slipped on an unidentified substance on the subway platform, causing him to fall on to the subway tracks of the 6 train at Grand Central Terminal, leading to him being struck by a train. (NYSCEF Doc. 3)

As the incident occurred on February 27, 2023, the Petitioner had until May 28, 2023 to timely file a notice of claim pursuant to General Municipal Law §50-e. However, as May 28, 2023 was a Sunday, and as May 29, 2023 was Memorial Day, if filed on May 30, 2023, the notice of claim would have been timely.

Here, the Petitioner seeks to serve a late notice of claim on the Respondents, essentially arguing that the notice of claim was not timely served because, due to the accident, the Petitioner was confined to the hospital and only retained counsel on May 31, 2023, one day after the time to file the notice of claim had expired. (NYSCEF Doc. 1)

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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. 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]; 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], affd, 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

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(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 has met the burden in establishing the key factors warranting leave to serve a late notice of claim on the Respondents.

In support of the motion, Petitioner submits an affidavit of merit, three photos depicting FDNY responders at the subway station, a print out of a Tweet thread, a Patch article concerning the incident and an NYPD aided report. (NYSCEF Doc. 3, 4, 5, 6, 7) At oral argument, this Court directed that the Petitioner efile the supporting medical records regarding the Petitioner's related confinement, which Petitioner had not yet obtained from the facilities at the time this application was filed. (NYSCEF Doc. 20, 21, 22).

The proposed notice of claim asserts claims sounding in negligence against the Respondents related to their ownership/control of both the subway platform, and the subject subway train which struck the Petitioner. (NYSCEF Doc. 2). It is claimed that the Petitioner was caused to slip or trip onto the...