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
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SUPREME COURT OF THE STATE OF NEW YORK
€ION. PETER 14. MOULTON
SUPREME COURT JUSTICE
- NEW YORK COUNTY
Index Number : 105532/2007
MOTION SEQ. NO.
NEW YORK CITY TRANSIT
SEQUENCE NUMBER 001
MOTION CAL. NO.
this motion tolfor
Notice ot Motlonl Order to Show Lause - Afflaavlts - txhlbits
Answering Affidavits - Exhibits
Upon the foregoing papera, it Is ordered that this motion
HQi4. P E E R €3. MOULTON
SUPREME COWT JUSTICE
J. S. C.
@ FINAL DISPOSITION
Check if appropriate:
0 NON-FINAL DISPOSITION
0 DO NOT POST
0 SUBMIT ORDER/ JUDG.
n SETTLE ORDER/ JUDG.
COUNTY OF NEW YORK
STATE OF NEW YORK
PATRICIA DAVIS, as Administratrix of the
Estate of JANICE CAMPBELL-PEGRAM, deceased
Index No. :
-againstNEW YORK CITY TRANSIT AUTHORITY, MANHATTAN
AND BRONX SURFACE TRANSIT OPERATING
AUTHORITY (M . A . B.S .T. .A. ) AND ROLAND LEWI
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.'
This action arose from injuries sustained by Janice
Pegram-Thompson while riding a bus operated by defendants on
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.
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
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.”
- L a i n t i € L l a L L rmv d
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
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
Plaintiff’s Bill of
Supplemental Bill of Particulars both state t h a t the accident
occurred ‘at or near 1 2 0 t h Street and St* Avenue by Marcus Garvey
At trial, Mr. Pegram testified that the accident occurred
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
It became plaintiff‘s theory of the carge.
This testimony by Pegram also differed from that of the
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.
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
light deployed at 124thStreet and Mt. Morris Park West. Mr. Lewis
disagreed that the accident occurred at 124th
Street and Mt. Morris
The defendants' accident reports indicate that the
accident occurred at 120 th Street and Mt. Morris Park West.
ambulance call report indicates that the ambulance reported to that
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
the accident location.
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.
(Lomax v New YQrk C j t -v Health and Hogpit&
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."
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
[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.
undermine thepurposes of a notice of claim
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
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.
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
Where a plaintiff waits too long to amend his notice of
claim to assert new factual predicates for negligence liability, his
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,
AD2d 171; Koneker v City of New
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
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
Instead, once the notice of claim was amended, the
plaintiff's complaint and bills of particulars adhered to the claim
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
Ced arhurst, 62 AD3d at 642.)
Indeed, by successfully moving to amend the notice of claim to
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
Rather than correcting its amended notice of
262 ADZd at 3 ) , the plaintiff took steps
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
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.
April 16, 2012