Stekolschik v Star Cruiser Transp., Inc.
Annotate this CaseDecided on April 12, 2005
Supreme Court, Kings County
Shaya Stekolschik, Plaintiff,
against
Star Cruiser Transportation, Inc., et ano, Defendants.
37045/04
David Schmidt, J.
Upon the foregoing papers, defendants move for an order, pursuant to CPLR 3211 (a) (5) and Public Authorities Law §1276, dismissing the complaint for plaintiff's failure to commence the action within the applicable statute of limitations.
On April 28, 2003, plaintiff Shaya Stekolschik was allegedly injured when the vehicle she owned and operated collided with a van leased to defendant Star Cruiser Transportation, Inc. (hereinafter "Star") and driven by defendant Vibert U. Stewart. Thereafter, she commenced this negligence action against defendants by filing her summons and complaint with the court on November 12, 2004. Defendants now move to dismiss on the ground that the action is time-barred, since the allegedly offending van was owned by and titled to the Metropolitan Transportation Authority (the "MTA"), and the action was commenced after the statute of limitations applicable to the MTA and its agents expired. [*2]
In support of their motion, defendants note that the subject van is titled and owned by the MTA, but that Star, as an Access-A-Ride contractor, leased the subject vehicle from the MTA.[FN1] As a result, defendants assert that they are agents of the MTA and that the applicable statute of limitations for claims against the MTA, and its agents, is one year and thirty days. Accordingly, defendants argue that plaintiff's action is time-barred, since it was commenced on November 12, 2004, nearly six months late.
In opposition, plaintiff argues that defendants should be equitably estopped from asserting the statute of limitations defense as they had timely notice of the claim, and have suffered no prejudice. Plaintiff contends that she first discovered that the MTA was the title owner of the vehicle after the statute of limitations had run and alleges that there was a well-formulated plan between defendants and the MTA to conceal the MTA's ownership interest. Plaintiff claims the vehicle itself did not have any identifying information that the MTA was an owner, nor did the driver wear a uniform. She asserts that the police accident report, prepared at the scene, did not indicate that a copy of said report was to be forwarded to the MTA, which, it is argued, would have been done had it been apparent that the vehicle was owned, operated, controlled or maintained by the MTA. Plaintiff's attorney alleges that a search of the records of the Department of Motor Vehicles was conducted with respect to the license plate, which showed the registered owner as Star. Further, counsel asserts that on or about May 13, 2003, he served a formal letter of representation upon the defendants via their insurance carrier, United States Fidelity & Guaranty Insurance Company, and had several conversations, and corresponded, with Sam Johnson, the claims adjuster assigned to the matter, who never indicated that Star was not in fact the "titled" owner. Plaintiff's attorney also points out that the Request for Judicial Intervention form (RJI) that was completed by defense counsel indicates that the Public Authority is not involved in this claim. Counsel contends that reliance was placed on "a police report, . . . numerous conversations with an insurance representative, . . . an independent title search, . . . and an eye witness account by the plaintiff . . . [n]one of which gave rise to any possible ownership issues." [FN2] Finally, it is argued that defendants' concealment of MTA's ownership "was a well-calculated strategy to prevent innocent claimants from pursuing their claims,"[FN3] and that the motion should be denied. [*3]
In reply, counsel avers that the RJI filed on November 12, 2004,[FN4] annexed to the opposition papers, was completed by his secretary, and contained a typographical error. Moreover, defendants argue that they have done nothing that would justify invoking the doctrine of equitable estoppel against them, and that a "simple" search of the Department of Motor Vehicle Records would have disclosed that the MTA is the title owner of the subject vehicle.
DISCUSSION
Pursuant to the Lease dated August 17, 2001, an agency arrangement, or joint service arrangement,[FN5] was created between Star and the MTA, thereby entitling Star, as MTA's agent, to all the "privileges, immunities, tax exemptions and other exemptions of the Authority and of the Authority's property, functions and activities" and subjecting it to suit in accordance with Section 1276 of the Public Authorities Law.[FN6]
Public Authorities Law § 1276 (2) provides that a negligence action against a public authority, or as in this case, as against its agent(s), must be commenced within one year after the cause of action accrues. Subdivision (1) of that Section, which provides for a thirty-day waiting period after the filing of a notice of claim, extends that Statute of Limitations to one year and thirty days.[FN7] Consequently, since this action was commenced more than one year and thirty days after the cause of action accrued, it is time-barred.
Relying principally upon the doctrine of equitable estoppel, plaintiff's central argument is that the motion should be denied on the ground that defendants acted in such a way as to deliberately conceal the true ownership information. An equitable estoppel may only be invoked where a plaintiff has been induced by fraud, misrepresentation or deception to refrain from timely commencing suit.[FN8] However, in this case, there is no evidence that defendants fraudulently or deceptively induced plaintiff from timely commencing the instant suit. As to "equitable tolling," the court finds this principle to be as equally unavailing. Equitable tolling is applicable under circumstances where the defendant has employed deception to conceal the presence of a viable suit from the plaintiff. In the instant situation, [*4]there is no evidence that the plaintiff was, in any way, unaware as to existence of an action at law.[FN9] Moreover, the court notes that plaintiff's attorney's conclusory allegation that that defendants were operating under a well-calculated strategy to deliberately conceal the ownership information, is without merit. While counsel avers that he conducted an "exhaustive search and investigation, far surpassing the standards of due diligence . . ."[FN10] regarding ownership of the van, defendants have annexed a vehicle registration printout indicating that NYC Transit is the current owner, and that the "owner and vehicle registrant are different."[FN11] Thus, counsel's claim of defendants' concealment of ownership is belied by the public record.
Lastly, this court is without authority to extend the Statute of Limitations.[FN12] Accordingly, for the foregoing reasons, defendants' motion is granted and the action is dismissed.
This constitutes the decision, order and judgment of the court.
E N T E R,
J S C
Footnotes
Footnote 1: Vehicle Lease Agreement, dated August 16,17, 2001 between Star and MTA (leased in conjunction with the Access-A-Ride Paratransit Services Contract), annexed to Reply.
Footnote 2: Aff. in Opp. ¶ 31.
Footnote 3: Aff. In Opp. ¶ 32.
Footnote 4: The Court notes that plaintiff could not have placed any reliance upon the alleged error on the RJI, filed with the instant motion, nearly six months after the Statute of Limitations period had run.
Footnote 5: see Public Auth. Law § 1261 (7), which provides, in relevant part, that: "Joint service arrangements" shall mean agreements between or among the authority and any common carrier . . . for or in connection with or incidental to transportation . . ."
Footnote 6: see Public Auth. Law § § 1266 (4), (5).
Footnote 7: see Penner v National R.R. Passenger Corp, 98 AD2d 631 (1983).
Footnote 8: see Simcuski v Saeli, 44 NY2d 442, 449 (1978).
Footnote 9: see Kotlyarsky v. New York Post, 195 Misc 2d 150 (2003).
Footnote 10: Aff. In Opp. ¶ 30.
Footnote 11: Defendants Exh. B.
Footnote 12: see CPLR 201; Magat v. County of Rockland, 265 AD2d 483, 484 (1999); Bolovis v Polis Contr. Corp., 235 AD2d 323 (1997); Matter of Cartwright v Rose, 162 AD2d 451, 452 (1990); Roldan v Allstate Ins. Co., 149 AD2d 20, 33 (1989).
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