Davis v New York City Tr. Auth.

Download as PDF
Loading PDF...
Davis v New York City Tr. Auth. 2012 NY Slip Op 31040(U) April 16, 2012 Sup Ct, NY County Docket Number: 105532/07 Judge: Peter H. Moulton Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK €ION. PETER 14. MOULTON PRESENT: SUPREME COURT JUSTICE - NEW YORK COUNTY PART 0 %) Justice - Index Number : 105532/2007 INDEX NO. DAVIS, PATRICIA MOTION DATE VS. MOTION SEQ. NO. NEW YORK CITY TRANSIT SEQUENCE NUMBER 001 MOTION CAL. NO. ~ - DISMISS ACTION this motion tolfor Notice ot Motlonl Order to Show Lause - Afflaavlts - txhlbits ... Answering Affidavits - Exhibits Replying Affidavit8 Cross-Motion: c Yes ] Upon the foregoing papera, it Is ordered that this motion * k rc Dated: W P-J HQi4. P E E R €3. MOULTON SUPREME COWT JUSTICE J. S. C. Check one: @ FINAL DISPOSITION Check if appropriate: 0 NON-FINAL DISPOSITION 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. u REFERENCE n SETTLE ORDER/ JUDG. [* 2] SUPREME COURT COUNTY OF NEW YORK : : STATE OF NEW YORK PART 40B PATRICIA DAVIS, as Administratrix of the Estate of JANICE CAMPBELL-PEGRAM, deceased Index No. : Plaintiff, 105532/07 -againstNEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY (M . A . B.S .T. .A. ) AND ROLAND LEWI 0 Defendants. MOULTON, J. : This p e r a o n a l injury action was t r i e d before a jury. The jury returned a verdict in plaintiff's favor for $1.5 million. to set aside the jury's verdict in favor of a new trial.' FACTS This action arose from injuries sustained by Janice Pegram-Thompson while riding a bus operated by defendants on January 24, 2006. The complaint allegeB that she boarded the bus 'The court considered the following submissions from the parties in considering the instant motion: 1) Defendants' Amended Notice of Motion and attached Affirmation and Exhibite and Memorandum of Law; 2 ) Plaintiff's Affirmation in Opposition and / . Memorandum of Law, and 3) Defendants' Reply Affirmation. L * YI! -64. [* 3] that morning driving a motorized scooter. She was accompanied by her huaband John Pegram. Mr. Pegram testified at trial that this was the first occasion his wife had used the scooter on a city bug. The bus driver strapped Ms. Pegram-Thompson in, but plaintiff claimed at trial that he did so incompletely, and therefore negligently. While the bus drove around Marcus Garvey Park in Harlem, Ms. Pegram-Thompson tipped over in her scooter and fell to the floor of the bus. She fractured her left femur and her right clavicle. Ms. Pegram-Thompson had previously been diagnosed with breast cancer, and she ultimately succumbed to that disease on March 19, 2007. The location of the incident was listed in plaintiff’s first notice of claim as \\at near 123rd by Marcus Garvey Park.” or % - L a i n t i € L l a L L rmv d x to amend the notice of claim to reflect that the location of the accident was \\at near 1 2 0 t h by Marcus Garvey or Park.“ There 1s no mention in either notice of claim that the driver of the bus ran a stop sign during the course of the incident. The amended complaint states that t h e bus made a “sharp, fast, and reckless turn” while “proceeding southbound on 5th Avenue in the City and County of New York at about 1 2 0 t h Street Complaint 77 23-25.) Plaintiff’s Bill of ,I‘ (Amended Particulars and Supplemental Bill of Particulars both state t h a t the accident 2 [* 4] occurred ‘at or near 1 2 0 t h Street and St* Avenue by Marcus Garvey Park. At trial, Mr. Pegram testified that the accident occurred pleadings. Mr. Pegram testified that the bus drove through a blinking red light and dual stop signs at 124 Street and Mt. Morris Park West without stopping and at a rapid pace. According to M r . Pegram, Ms. Campbell-Pegram was thrown from her motorized scooter of the accident was asserted by plaintiff’s counsel before the jury. It became plaintiff‘s theory of the carge. This testimony by Pegram also differed from that of the k bus driver, Roland Lewis. Lewis testified that he stopped at dual stop signs at 124th Street and Mt. Morris Park West, turned left, and then proceeded at normal speed down Mt. Morris Park West. He passengers began to shout that a passenger had fallen. Mr. Lewis testified that there was a traffic signal at 1 2 0 t h Street, and that it was g r e e n . It was not disputed at trial that this intersection had a traffic signal, as opposed to the stop sign and blinking red 3 [* 5] light deployed at 124thStreet and Mt. Morris Park West. Mr. Lewis disagreed that the accident occurred at 124th Street and Mt. Morris Park West. The defendants' accident reports indicate that the accident occurred at 120 th Street and Mt. Morris Park West. The ambulance call report indicates that the ambulance reported to that intersection. The discrepancies between Mr. Pegram's testimony and the plaintiff's amended notice of claim and pleadings thus were not cured by defendants' adoption at trial of Pegram's description of I the accident location. DISCUSSION It is well-established that [t]he purpose of a notice of % claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. I ' (Lomax v New YQrk C j t -v Health and Hogpit& 2, 4.) An CorporatiQa, 262 AD2d accurate notice of claim allows the municipality or other governmental entity to investigate the accident scene "while the facts surrounding the incident [are] still fresh." (I1e:ra v New York Citv Transit Auth., 181 AD2d 658, 659.) The Court of Appeals stated in B r o w v C itv of flew York (95 NY2d 389, 393): 4 [* 6] [Clourts should focus on t h e purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time, and understand the nature of the incident. Misidentification of the accident undermine thepurposes of a notice of claim site ’ can fatally The late Justice Evans stated that “[elrrors in location designation, however innocently made, are inherently misleading.“ ( plat:ter 0f cresn0 , 123 MiacZd 862, 863; gee alsQ Cha rleston v fnco rporate d V i l l m e of C e w h u r a , 62 AD3d 641; u s e h i 11 v cit.v 0f New York , 260 AD2d 5 9 7 ; Wil l i a w v of New York, 156 AD2d 361.) Here defendants were prejudiced by plaintiff’s change at trial in identifying the accident site because the change was not only one of location, but also one that concerned the etiology of t h e accident. At trial, plaintiff’s argument that the accident occurred at 124thStreet - - not at 120th Street, as get forth in the amended notice of claim - was accompanied by the assertion that the buB driver ignored stop signs and a red blinking light to make the left turn. This describes an even greater degree of negligence than taking a left turn at excessive speed when the traffic signal is green. Where a plaintiff waits too long to amend his notice of claim to assert new factual predicates for negligence liability, his 5 [* 7] pre-trial motion to amend t h e notice of claim will be denied and the (ChiDurnoi v Manha ttan and Bronx action dismissed with prejudice. surface T r anait Q D e rating A u t h., 216 York, 172 AD2d 361, denied, 78 AD2d 171; Koneker v City of New NY2d 858.) f o r t iori, a claim must be dismissed when a plaintiff attempts to change at trial the facts contained in the notice of claim. Plaintiff argues that defendants had ample information to investigate t h e accident, and did investigate immediately after the accident. It is true that the City's investigation timely went forward at 1 2 0 t h Street, but, until trial, the city never knew that there would be an alternate narrative of t h e accident presented by plaintiff. Instead, once the notice of claim was amended, the plaintiff's complaint and bills of particulars adhered to the claim s that the accident that caused plaintiff's injuries occurred at the left turn at 1 2 0 t h Street. This repetition of the accident site in pleadings deters a defendant from further investigation. Charleston v Incoraorated Village 0f ( Ced arhurst, 62 AD3d at 642.) Indeed, by successfully moving to amend the notice of claim to 2' 3 change the accident location from 1' Street to 1 2 0 t h Street, the plaintiff appeared to give even greater validity to the 120thStreet accident location. claim (GL, Rather than correcting its amended notice of Bupra. 262 ADZd at 3 ) , the plaintiff took steps 6 [* 8] that gave defendants greater assurance that the claimed accident location was at 1 2 0 t h Street and Mt. Morris Park West. Given the prejudice to defendants, the court s e t s aside the jury's verdict pursuant to CPLR 4404(a). As plaintiff's time to amend the notice of claim has long expired, and as t h e court has no discretion to extend the time, this action must be dismissed. (General Municipal Law §§ 50-e(5), , 50-i(l) .) CONCLUSION The motion is granted. The jury'a verdict is vacated and set aside and the complaint is diBmissed. This constitutes the decision and order of the court. FILED DATE : April 16, 2012 APR 7