Vandermast v New York City Tr. Auth.

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[*1] Vandermast v New York City Tr. Auth. 2009 NY Slip Op 51004(U) [23 Misc 3d 1129(A)] Decided on May 21, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2009
Supreme Court, Kings County

Leia Vandermast, Plaintiff,

against

New York City Transit Authority and METROPOLITAN TRANSPORTATION AUTHORITY, Defendant.(s)



9044/08



The plaintiff is represented by the law firm of Block, O'Toole & Murphy, by Brian J. Isaac, Esq., and Sean P. Constable, Esq., of counsel, the defendants New York City Transit Authority and Metropolitan Transportation Authority are represented by the law office of Wallace D. Gossett, Esq., by June-Annette F. Chenn, Esq., of counsel.

Robert J. Miller, J.



Plaintiff Leia Vandermast (Vandermast) moves to strike the defendants answer or in the alternative to compel discovery. The defendants' New York City Transit Authority and Metropolitan Transportation Authority (collectively the Authority) cross-move pursuant to CPLR § 3211 and § 3212 to dismiss the complaint for failure to meet the requirements of General Municipal Law (GML) § 50-e and the Public Authorities Law (PAL) §1212. The Authority argues that the Notice of Claim was filed two days late and since the statue of limitations has expired, the complaint must be dismissed.

The plaintiff allegedly sustained physical injuries when she fell off a subway platform on July 4, 2008 at the 8th Avenue subway station in Brooklyn. Plaintiff served the Authority with her Notice of Claim on October 4, 2007.

Public Authorities Law § 1212(2), which governs the commencement of the [*2]actions against the Authority provides:

"... an action against the authority founded on

tort shall not be commenced more thanone

year and ninety days after the happening of

the event upon which the claim is based, nor

unless a notice of claim shall have been served

on the authority within the time limited, and in

compliance with all the requirements of section

fifty-e of the general municipal law..."

Here the ninety (90) days to file the Notice of Claim expired on October 2, 2007 and therefore when plaintiff filed the notice on October 4, 2007, it was two days late. Plaintiff subsequently filed a summons and complaint on March 20, 2008. Issue was joined when the

Authority served its answer on April 4, 2008.

Service of a Notice of Claim is a condition precedent to the commencement of a tort action against a municipality. (Clayton Industries, Inc. V City of Newburgh, [17 AD3d 309

[2d Dept 2005]. The failure to serve the notice within ninety (90) days makes it a nullity. (Laroc v City of New York , 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007] , Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ]).

It is well-settled that the Court is without jurisdiction to permit the plaintiff to comply with the Notice of Claim requirement after the expiration of the statute of limitations. (Hochberg v City of New York, 63 NY2d 665 [1984], Cohen v Pearl River Union Free School District, 51 NY2d 256 [1980], Pierson v City of New York, 56 NY2d 950 [1982].) GML §50-e (5) states that "the extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation."

The statute of limitations as outlined in GML § 50-i (c) requires that:

the action ...shall be commenced within one year

and ninety days after the happening of the event

upon which the claim is based.

Here, the statute of limitations of one (1) year and ninety (90) under GML § 50-i expired on October 2, 2008.

Plaintiff argues that the Authority should be estopped from raising the affirmative defense of lack of compliance with the GML §50-e. First, because the Authority sent a letter to the plaintiff's attorney addressing a defect in the notice which plaintiff contends was designed to mislead the plaintiffs attorney into believing that the Notice of Claim was filed within the proper [*3]time frame but just needed to be notarized. Second, that the Authority had reason to know it was lulling the plaintiff into a false sense of security because the letter focused on the correction of the form of the notice not the timeliness.

An administrative agent of the Authority sent the following letter dated October 10, 2007: Pursuant to section 1212 of the Public Authorities Law and Section 50-e of the General Municipal Law the attached Notice of Claim is being returned for the reasons stated below:

-The Notice of Claim was not notarized. A Notice of Claim filed against the New York City Transit Authority MUST BE SERVED WITHIN 90 DAYS AFTER THE INCIDENT, be notarized and in writing.Failure to file a claim in accordance with the applicable statutes will result in its automatic disallowance. You may file again within 10 days after receiving this correspondence if you have complied with 90 day service requirement.

The doctrine of estoppel is rarely applied to municipalities (Hamptons Hospital v Moore, 52 NY2d 88[1981].), and it applies only when the conduct of the municipality was calculated to or negligently did, mislead a party from serving a timely Notice of Claim and the conduct was relied upon by the party. (Bender v NYCHHC, 38 NY2d 662 [1976].) Here, the Court finds that the letter sent by the Authority was not calculated to mislead or create a false sense of security by the plaintiff that the Notice of Claim was timely filed. The Court notes that the Authority in its letter not only notified the plaintiff that the Notice of Claim was not properly notarized but in bold lettering, reiterates that the claim must be filed within ninety (90) days after the date of incident. The letter was sent eight (8) days after the ninety (90) day period had expired and one year prior to the expiration of the statue of limitation. Plaintiff had adequate time to attempt to seek relief for the late filing. To view the letter as conduct willfully designed to mislead or negligently prepared so as to mislead is to rewrite the letter and to place the burden on the municipality, not the plaintiff, to insure compliance with the Notice of Claim requirements. Case law does support such a result.

Plaintiff relies on two Second Department cases which are clearly distinguishable. In (Jerhurin v Liberty Lines Transit, 191 AD2d 412 [2d Dept 1993]), the Court held that the municipality waived its right to assert non-compliance with Notice of Claim requirements because it did not oppose a motion to dismiss the affirmative defense of failure to state a cause of action. The Court found that this constituted an affirmative withdrawal of the objection to the defective Notice of Claim. No such affirmative action took place here.

In Brown v City of New York, 264 AD [2d Dept 1999], the Court found that the failure to raise the Notice of Claim defect in opposition to an application to vacate a judgment combined with waiting for a ten year statute of limitations to toll equitably estopped the City from raising the purported defect. Once again, no affirmative action took place here. To the contrary, in response to a motion to strike its answer, the [*4]Authority cross moved to dismiss the complaint.

Furthermore, the Authority is under no obligation or duty to inform the plaintiff that the Notice of Claim was late (Soloff v Board of Ed. of the City of New York, 90 AD2d 829 [2d Dept 1982]), nor does the Authority have an obligation to raise plaintiff's failure to file a timely Notice of Claim in its answer (Maxwell v City of New York, 29 AD3d 540 [2d Dept 2005].), A municipality's participation in discovery, discussion between counsel, and even the holding on to a late Notice of Claim without disclosing its lateness, has been found not to trigger estoppel against a municipality. (Hochberg v City of New York, 63 NY2d 665 [1984], (Soloff v Board of Ed. of the City of New York, 90 AD2d 829 [2d Dept 1982], Ippolito v Buffalo, 195 AD2d 983 [4th Dept 1993], Rodriques v NYC, 169 AD2d 532 [1st Dept 1991]).

Finally, plaintiff to this date has failed to move to file a late Notice of Claim nunc pro tunc, the preferred procedure for correcting a Notice of Claim defect. (Bender v NYCHHC, 38 NY2d 662 [1976]).

Accordingly, the Authority's cross-motion for an order dismissing the plaintiff's complaint against it is granted and the motion to strike the defendants' answer or compel discovery is denied as moot.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

May 21, 2009