Holmes-Thompson v New York City Tr. Auth.

[*1] Holmes-Thompson v New York City Tr. Auth. 2007 NY Slip Op 52130(U) [17 Misc 3d 1123(A)] Decided on November 5, 2007 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2007
Supreme Court, Kings County

Kim Holmes-Thompson, Plaintiff,

against

New York City Transit Authority and "John Doe" (the name being fictitious and intended to designate the driver of the bus), Defendants.



23149/06



Plaintiff was represented by Louis Fiabane, Esq. Defendant was represented by Melissa R. Gassler, Esq. of counsel to Wallace D. Gossett, Esq.

Jack M. Battaglia, J.

On this motion for leave to amend a notice of claim and Complaint, the Court must determine the boundary between General Municipal Law § 50-e(6), which generally permits "a mistake, omission, irregularity or defect . . . in the notice of claim . . . [to] be corrected, supplied or disregarded, as the case may be," and General Municipal Law § 50-e(5), which is more restrictive in permitting service of a late notice of claim. Among other things, an amendment pursuant to § 50-e(6) may be permitted "at any time," whereas a request for leave to serve a late notice of claim pursuant to § 50-e(5) may only be made within the limitations period. Here, because the proposed amendment does not add or change any fact that is material to Plaintiff's prima facie case, it is determined to be an "omission" that may be "supplied," and is not considered to be the assertion of a new "claim," requiring leave to make untimely service.

On May 4, 2006, plaintiff Kim Holmes-Thompson served her Notice of Claim upon New York City Transit Authority ("NYCTA"), alleging that on February 16, 2006, at approximately 11:30 A.M., while she was a passenger on NYCTA bus numbered 9240 on bus route B3, at the intersection of Avenue U and West 8th Street, she was "caused to be seriously injured with great force and violence when said bus stopped abruptly, suddenly, violently and without warning after traveling at a high rate of speed and attempted to beat a light changing from green to red." The Notice of Claim further alleges that NYCTA was negligent "in the ownership, operation, maintenance and control of said motor vehicles (sic), and in their (sic) failure to properly train and hire competent personnel."

On August 1, 2006, Plaintiff testified at a statutory hearing, to the effect that she sustained injuries when she fell, and other passengers fell on top of her, after the bus came to a sudden stop. Significantly, she testified that the bus did not collide with any other vehicle. On August 3, 2006, Plaintiff filed her Summons and Complaint, alleging, as she did in her Notice of [*2]Claim, that she was "caused to be seriously injured with great force and violence when said bus stopped abruptly, suddenly, violently and without warning after traveling at a high rate of speed and attempted to beat a light changing from green to red." (See Complaint, ¶ 10.)

On April 14, 2007, NYCTA served Plaintiff with a discovery response, attaching four accident investigation reports, including a Surface Line Operator Accident Report, Surface Line Operator MV-104, Supervisor's Accident Crime Investigation Report, and Police Accident Report MV-104AN. The reports indicate, among other things, that the subject bus made contact with a vehicle operated by Judy C. Kennedy, and identify the operator of the bus as Walter McDonnell, Sr. All of the reports, except for Police Accident Report MV-104AN, were prepared by NYCTA employees.

In her motion, Plaintiff seeks to amend her Notice of Claim to allege that the NYCTA bus was operated by Walter McDonnell, Sr., and that the bus "stopped abruptly, suddenly, violently and without warning after traveling a high rate of speed and attempted to beat a light changing from green to red, at which time said bus came into contact with another motor vehicle bearing license plate number AJK3702, NY owned and operated by Judy C. Kennedy . . ." (Emphasis added.) Plaintiff contends that she is entitled to amend the Notice of Claim pursuant to General Municipal Law § 50-e(6), which provides that "at any time after the service of a notice of claim and at any stage of any action . . . , a mistake, omission, irregularity or defect made in good faith in the notice of claim . . . , not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby."

In her motion, Plaintiff establishes, through submission of her statutory hearing transcript and NYCTA's discovery response, that her failure to include in her original notice of claim the allegation that the bus made contact with another vehicle was made in good faith, since she did not know about the contact with the other vehicle until she was served with NYCTA's disclosure response. Plaintiff also establishes lack of prejudice by submitting proof that a NYCTA bus operator was involved in the underlying accident, and that NYCTA conducted its own investigation of the collision on the date of the accident. Moreover, the original notice of claim, which was timely served, sufficiently apprised NYCTA of the bus number, bus route, and the date, time, and location of the accident, such that NYCTA could conduct a timely investigation of the accident.

In opposition, NYCTA contends that the proposed notice of claim does not correct a "mistake, omission, irregularity or defect," but rather impermissibly alleges a new theory of liability. (See Barksdale v New York City Tr. Auth., 294 AD2d 210, 211 [1st Dept 2002]; Rodriguez v New York City Tr. Auth., 286 AD2d 681, 681 [2d Dept 2001]; Chipurnoi v Manhattan & Bronx Surface Tr. Operating Auth., 216 AD2d 171, 172 [1st Dept 1995].) As such, NYCTA further contends that Plaintiff would be required to seek leave to serve a late notice of claim under General Municipal Law § 50-e(5), but that she is time-barred from doing so. (See e.g. Halperin v City of New York, 127 AD2d 461, 462 [1st Dept 1987] [explaining that when [*3]plaintiff seeks to amend a notice of claim to include a new theory of liability, such motion is governed by the standards for seeking to serve a late notice of claim].)

"To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.'" (Banfield v New York City Tr. Auth., 36 AD3d 732, 732 [2d Dept 2007], quoting Urquhart v New York Tr. Auth., 85 NY2d 828, 830 [1995], in turn quoting Trudell v New York R. T. Corp., 281 NY 82, 85 [1939]; see also Assante v New York City Tr. Auth., 22 AD3d 698 [2005].). "[P]roof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff." (Banfield v New York City Tr. Auth., 36 AD3d at 732, quoting Urquhart v New York Tr. Auth., 85 NY2d at 830.) It may include evidence regarding factual circumstances of the incident or the injuries sustained by the plaintiff. (See Banfield v New York City Tr. Auth., 36 AD3d at 732 -33.)

Contrary to NYCTA's contention, Plaintiff's additional allegation that the bus suddenly stopped, "at which time" it came into contact with another vehicle does not "substantially alter" Plaintiff's theory of liability. (See e.g. Streletskaya v New York Trans. Auth., 27 AD3d 640, 641-42 [2d Dept 2006]; Oschepkova v New York City Trans. Auth., 24 AD3d 523, 524 [2d Dept 2005]; Butler v Town of Smithtown, 293 AD2d 696, 697-698 [2d Dept 2002].) Rather, it supplements the allegations contained in the original Notice of Claim with additional facts describing the circumstances of the alleged sudden stop. (See Streletskaya v New York City Tr. Auth., 27 AD3d at 641 [permitting amendment of notice of claim to describe the location of the occurrence and the cause of plaintiff's fall with more particularity]; Oschepkova v New York City Tr. Auth., 24 AD3d at 524 [permitting amendment of notice of claim to correct an error in the description of the manner in which the incident occurred where original notice of claim provided correct date and time of incident, as well as the number of the NYCTA bus involved in the incident].) Although such additional facts may assist Plaintiff in establishing a prima facie case as against NYCTA (see Banfield v New York City Tr. Auth., 36 AD3d at 732), the theory of liability is the same — that the bus was operated negligently, resulting in a sudden stop.

In short, the proposed amendment does not add or change a fact that is material to Plaintiff's prima facie showing that the bus's sudden stop was "unusual and violent." The additional allegation of an impact may suggest the reason for the sudden stop of the bus, or a further consequence of its alleged negligent operation, but neither a motivation for the bus operator's conduct, nor a catalogue of all of its consequences, is required to the statement prima facie of the claim. Indeed, the basis for a common carrier's liability upon an "unusual and violent" sudden stop is an inference of negligence akin to res ipsa loquitor. (See Rountree v Manhattan and Bronx Surface Tr. Operating Auth., 261 AD2d 324, 326-27 [1st Dept 1999].)

The cases cited by NYCTA where plaintiffs were precluded from proceeding under General Muncipal Law § 50-e(6) to amend the Notice of Claim involved adding a new allegation of design defect where only negligence had been alleged in the original notice of claim (see [*4]Rodriguez v New York City Tr. Auth., 286 AD2d at 681; Chipurnoi v Manhattan and Bronx Surface Tr. Op. Auth., 216 AD2d 171, 171-72 [1st Dept 1995]; Barksdale v New York City Tr. Auth., 294 AD2d 210, 211 [1st Dept 2002]); or changing the name of an allegedly negligent hospital from that designated in the original notice of claim (see De La Cruz v City of New York, 221 AD2d 168, 168 [1st Dept 1995]; but see Lomax v New York City Health and Hospitals Corp., 262 AD2d 2, 5 [1st Dept 1999] [distinguishing De La Cruz on its facts and permitting plaintiff to change the name of an allegedly negligent hospital from that designated in the original notice of claim].)

None of the cases cited by NYCTA present factual circumstances similar to those present here, where Plaintiff served a timely notice of claim, providing sufficient information for NYCTA to conduct an investigation regarding the circumstances of the incident; where NYCTA in fact conducted an investigation of the collision on the date it occurred; where Plaintiff did not learn of the collision until disclosure proceedings; and where NYCTA, as a common carrier, would have been in a better position to know the facts and circumstances of the alleged sudden stop and collision than the injured plaintiff.

In opposition, NYCTA does not submit any evidence that Plaintiff's proposed amendment is made in bad faith, or that NYCTA would suffer any prejudice as a result of the amendment. Accordingly, the portion of Plaintiff's motion seeking to amend the notice of claim must be granted.

Plaintiff also moves for an order, pursuant to CPLR 3025(b), to amend her Summons and Complaint. In this regard, Plaintiff seeks to include the allegation that the bus made contact with another vehicle, to substitute the name of the bus operator, Walter McDonnell, Sr., for "JOHN DOE," and to add Judy C. Kennedy as a defendant, alleging that she was the owner and operator of the motor vehicle that came into contact with the bus.

It should be noted that neither party addresses movant's prima facie showing on a motion to amend a pleading to add a new party, to allege additional facts, or to substitute an actual name for the name of a fictitious defendant.

A motion to amend the Summons and Complaint to add a new party is properly brought pursuant to CPLR 1003 and CPLR 3025(b). "Leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party." (See Surgical Design Corporation v Correa, 31 AD3d 744, 745 [2d Dept 2006]; see also Buckholz v Maple Garden Apartments, LLC, 38 AD3d 584, 584 [2d Dept 2007].) Here, the portion of Plaintiff's motion seeking to add Judy C. Kennedy as a defendant should be granted since there is no prejudice to NYCTA by adding her, or as a result of Plaintiff's delay in seeking the amendment. (See Sheppard v Charles A. Smith Well Drilling and Water Systems, 102 AD2d 919 , 920 [3d Dept 1984]; see also Levykh v Laura, 274 AD2d 418, 418 [2d Dept 2000].)

A motion to substitute an actual name for the name of a fictitious defendant is properly [*5]brought pursuant to CPLR 1024 and CPLR 3025(b). Movant must demonstrate genuine and timely efforts to ascertain the actual identity of the person prior to suing under a fictitious name. (See Harris v North Shore University Hosp. at Syosset, 16 AD3d 549, 550 [2d Dept 2005].) Here, Plaintiff sufficiently demonstrated that she was not aware that the bus operator's name was Walter McDonnell, Sr. until after being provided with NYCTA's disclosure response. Moreover, there is no issue as to timeliness since Walter McDonnell, Sr. is united in interest with his employer, defendant NYCTA, which was timely served. (See Reznick v MTA/Long Island Bus, 7 AD3d 773, 774 [2d Dept 2004].)

Plaintiff's motion seeking to amend the Complaint to allege additional facts, including that the bus made contact with another vehicle, must also be granted. Plaintiff has demonstrated through submission of the accident investigation reports attached to NYCTA's disclosure response that the additional factual allegations are not "palpably without merit." (See Buckholz v Maple Garden Apartments, 38 AD3d at 584; Spence v Bear Stearns & Co., 264 AD2d 601, 602 [1st Dept 1999]). Plaintiff sufficiently explained her delay in seeking amendment, since she was not aware that the bus made contact with another vehicle until after she was provided with NYCTA's disclosure response. Clearly, there is no prejudice; NYCTA conducted an investigation of the accident on the date it occurred, and has known the facts and circumstances of the accident through the involvement of its own employee, the bus operator Walter McDonnell, Sr. Moreover, it does not appear that there has been any significant disclosure in this case as depositions have not been held. (See generally East Patchogue Contracting Co. v Magesty Securities Corp., 181 AD2d 714, 715 [2d Dept 1992].)

In opposition, NYCTA only contends that "Plaintiff's application to amend her complaint to add a theory of liability based upon contact between defendant's bus and another vehicle must also be denied because she has never filed a proper Notice of Claim which included a cause of action based upon that theory of liability." The Court has already rejected NYCTA's contention in this regard, and has permitted Plaintiff to amend her Notice of Claim. NYCTA does not contend or submit any evidence of any prejudice to it as a result of the amendment of the Complaint, or Plaintiff's delay in seeking amendment.

Accordingly, Plaintiff's motion to amend her Notice of Claim and her Summons and Complaint is granted in its entirety. The Amended Notice of Claim, as well as Amended Summons and Amended Verified Complaint, are deemed served nunc pro tunc upon NYCTA only.

The caption of the action shall now read as follows:  1;-

KIM HOLMES-THOMPSON,

Plaintiff, [*6]

-against

NEW YORK CITY TRANSIT AUTHORITY, WALTER

MCDONNELL, SR., and JUDY C. KENNEDY,

Defendants.  1;-

__________________

November 5, 2007Jack M. Battaglia

Justice, Supreme Court