Williams v. Mta Bus Co.

• Decision Date: 23 June 2014
• Citation: 2014 N.Y. Slip Op. 24159,989 N.Y.S.2d 806,44 Misc.3d 673
• Parties: Rosalind WILLIAMS, Plaintiff, v. MTA BUS COMPANY, New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, The City of New York, and “John Doe” (name being fictitious and unknown representing that of the operator), Defendants.
• Court: New York Supreme Court

44 Misc.3d 673

989 N.Y.S.2d 806

2014 N.Y. Slip Op. 24159

Rosalind WILLIAMS, Plaintiff,

v.MTA BUS COMPANY, New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, The City of New York, and “John Doe” (name being fictitious and unknown representing that of the operator), Defendants.

Supreme Court, New York County, New York.

June 23, 2014.

Scott Baron & Associates, P.C., By: Andrea R. Palmer, Esq., Howard Beach, for Plaintiff.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, By: Jerry Granata, Esq., New York, for Defendant MTA Bus Company.

Michael A. Cardozo, Corporation Counsel of the City of New York, By: Olga Minkina, New York, for Defendant City of New York.

Wallace D. Gossett, Esq., By: Brian M. Hanney, Esq., Brooklyn, for defendants New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority and Metropolitan Transportation Authority.

MICHAEL D. STALLMAN, J.

Decision and Order

In this action, plaintiff, who states that she is legally blind, alleges that, on July 19, 2012, she was a passenger on a “M7 Express bus” that stopped short at or near 23rd Street in Manhattan.

Plaintiff now moves for a default judgment against defendant MTA Bus Company; defendant MTA Bus Company cross-moves for an order granting, nunc pro tunc, an extension of time to answer the complaint and for an order dismissing the action as against it on the ground that plaintiff's claims against defendant MTA Bus Company are time-barred (Motion Seq. No. 001). In essence, each side argues that it is entitled to prevail because the other missed a deadline.

The City of New York moves for summary judgment dismissing the action as against it, on the ground that it does not own the “M7 Express bus” at issue. (Motion Seq. No. 002).

Lastly, defendants New York City Transit Authority (N.Y.CTA), Manhattan and Bronx Surface Transit Operating Authority (MABSTOA), and the Metropolitan Transportation Authority (MTA) (collectively, the Authorities) move for dismissal and for summary judgment dismissing the complaint as against them (Motion Seq. No. 003). Like the City, they too assert that they do not own the “M7 Express bus” at issue, and they also contend that the notice of claim is inadequate, because it did not provide the cross street where the bus allegedly stopped short.

This decision addresses all three motions.

I.

According to a “Notice of Intention to Make Claim” addressed to defendant MTA Bus Company at 128–15 28th Avenue, Flushing, N.Y. 11354, plaintiff gave notice of an intention to make a claim against “said carrier” for damages that she sustained, attributable to an accident that occurred on “7/19/2012 11:49 a.m.” “At or near 23rd Street, City of New York, State of New York.” (Granata Affirm., Ex A.) Defendant MTA Bus Company does not dispute that it received this notice of claim. (Granata Affirm. ¶ 6.)

Another notice of claim dated October 11, 2012 was addressed to the Comptroller of the City of New York, MABSTOA, the MTA Bus Company, and the NYCTA. This notice of claim, which plaintiff apparently verified, states, in pertinent part:

“The time when, the place where, and the manner in which the claim arose: The accident arose on July 19, 2012 at approximately 11:49 a.m. at or near 23rd Street New York, New York. Claimant Rosalind Williams was a passenger on a bus at or near 23rd Street New York, New York when the bus owned by Respondents and operated by their agent, servant and/or employee rear ended another automobile.... Upon information and belief, the motor vehicle owned by respondents is identified as an M7 Express bus bearing an unknown identification number, an unknown license plate number and operated by “JOHN DOE”, name fictitious and unknown.”

(Minkina Affirm. Ex. A; Hanney Affirm., Ex. C.) The City of New York does not dispute that this notice of claim was filed with the Comptroller on or about October 18, 2012. (Minkina Affirm. ¶ 3.)

By a letter dated November 8, 2012 to plaintiff's counsel, the NYCTA wrote that plaintiff's notice of claim was being returned to plaintiff, because “the exact location (cross streets) was omitted.” (Hanney Affirm., Ex. E.) According to the NYCTA, plaintiff's counsel was unable to provide the relevant cross streets, but informedthe NYCTA that it was believed that plaintiff had boarded the subject M7 Express bus at or near plaintiff's home, i.e., at or near Co-op City, Bronx, New York.” (Hanney Affirm. ¶ 31.) The NYCTA did not schedule a statutory hearing, because it rejected plaintiff's notice of claim, and claimed that it had not received any amended notice of claim. (Hanney Affirm. ¶ 33.)

Meanwhile, the MTA Bus Company initially requested plaintiff to appear for an oral examination by a letter dated April 30, 2013. (Palmer Opp. Affirm, Ex. C.) The letter, which contained the subject line “ “Re: Notice of Oral Examination ” states, in pertinent part:

“By virtue of the power conferred on the MTA Bus Company by Sec. 1276 et. seq. of the Public Authorities Law, the above referenced claimant is hereby required to appear and be sworn to testify as to all facts relative to the above claim presented by you to the MTA Bus Company.

You are scheduled to appear on:

DATE: May 13, 2013

Location: 2 Broadway, 21st St., Room D21.101, N.Y., N.Y.

Time: 10:00 a.m.”

( Id.) By letters dated May 13, 2013 and August 8, 2013, the MTA Bus Company rescheduled plaintiff's oral examination. (Palmer Opp. Affirm., Exs. E, H.) By a letter dated August 9, 2013, the MTA Bus Company canceled the examination. (Palmer Opp. Affirm., Ex. I.)

It is undisputed that plaintiff commenced this action on September 3, 2013. The complaint, which plaintiff's attorney apparently verified, alleges that each named defendant was the owner, lessor, and lessee of “an express bus bearing an unknown license plate number.” (Verified Complaint ¶¶ 16–30.) According to the complaint, “on July 19, 2012, the above-mentioned bus stopped short at the aforesaid public thoroughfare.” (Verified Complaint ¶ 42.)

According to an affidavit of service, the pleadings were served on defendant MTA Bus Company on September 9, 2013 at 12:53 p.m., by delivery to a “John Doe” at 347 Madison Avenue, 9th Floor, Law Dept., New York, N.Y. 10007”. (Palmer Affirm., Ex. B.) A date stamp on a copy of the summons reads,

“MTA BUS CO.

LI BUS

LEGAL DEPT.

RECEIVED

2013 SEP–9 P 12:53”

(Palmer Opp. Affirm., Ex. K.) According to plaintiff's attorney, more than 30 days have passed since service was purportedly made. (Palmer Affirm. ¶ 4.)

Defendant MTA Bus Company denies that it was properly served. It also claims that its counsel, Armienti, DeBellis, Guglielmo, & Rhoden, LLP, has since served an answer upon plaintiff, and that plaintiff has not rejected its answer (Grananta Affirm. ¶ 43.)

Plaintiff's counsel claims that, by a letter dated October 21, 2013, plaintiff rejected the answer of the MTA Bus Company. However, the October 21, 2013 letter was addressed to MTA Bus Company's counsel at “44 Wall Street, New York, New York 10005–2401” (Palmer Opp. Affirm. Ex. L.), whereas the answer, the cover letter accompanying the answer, and discovery demands all apparently indicated that MTA Bus Company's counsel was located at “39 Broadway, Suite 520, New York, New York, 10006–3034.” (Granata Affirm., Ex. D; Palmer Opp. Affirm., Ex. L.)

II.

The Court will first address MTA Bus Company's cross motion, because MTA Bus Company seeks permission to submit a late answer pursuant to CPLR 3012(d). If permission is granted, then plaintiff's motion for a default judgment against it is rendered academic.

A.

To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must show a “reasonable excuse for delay or default.” (CPLR 3012[d].) The defendant is not required to set forth a meritorious defense if no default judgment has been entered. ( Hirsch v. New York City Dept. of Educ., 105 A.D.3d 522, 961 N.Y.S.2d 923 [1st Dept.2013].)

Here, MTA Bus Company has established that plaintiff accepted the late answer of the MTA Bus Company, and plaintiff thereby waived the default. ( Vazquez v. Beharry, 82 A.D.3d 649, 919 N.Y.S.2d 336 [1st Dept.2011].) The October 21, 2013 letter from plaintiff's counsel did not constitute a timely rejection of the MTA Bus Company's answer, because it was not sent to counsel's address, which was clearly indicated in all the materials that were served upon plaintiff's counsel.

In any event, the MTA Bus Company offered a reasonable excuse for its delay in answering the complaint. Marlo Polese, an agency attorney for MTA Bus Company, asserts that MTA Bus Company maintains its offices at 2 Broadway, New York, New York 10004, and that “[s]ervice on the MTA Bus Company can only be accepted at the 2 Broadway location.” (Granata Affirm., Ex. E [Polese Aff.] ¶¶ 3–4.) It claims that “MTA Bus Company” and “MTA Bus Company Long Island Bus” are two separate and distinct legal entities, and that, based on the stamp, the pleadings were received by the Long Island Bus Company's legal department, not MTA Bus Company's legal department. (Grenata Reply Affirm. ¶¶ 25–26.) Plaintiff has not demonstrated any prejudice that would result from the permitting service of a late answer.

Therefore, the branch of the MTA Bus Company's motion for an extension of time to answer the complaint is granted, and the answer annexed as Exhibit D to the cross motion (N.Y.SCEF Doc. No. 25) is deemed timely served. Given that the Court has granted the MTA Bus Company permission to serve a late answer, plaintiff's motion for a default judgment against MTA Bus Company is denied.

Even if the Court had not granted the MTA Bus Company leave to serve a late answer, plaintiff's motion for a default judgment against MTA Bus Company would still be denied. As discussed above, the MTA Bus Company disputed that it was properly served with the pleadings. Moreover, “[s]ome...