Murray v New York City Hous. Auth.

[*1] Murray v New York City Hous. Auth. 2014 NY Slip Op 51491(U) Decided on October 14, 2014 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2014
Supreme Court, New York County

Mary Murray, Plaintiff,

against

New York City Housing Authority and NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants.



154242/14



Marvin A. Cooper, PC

Attorneys for Plaintiff

245 Main Street, Suite 510

White Plains, New York 10601

(914) 428-9200

Zachary W. Carter (by Anthony Bila)

Corporation Counsel

Attorneys for DOT

100 Church Street

New York, New York 10007

(212) 788-1411

Ledy-Gurren, Bass, D'Avanzo & Siff, LLP

Attorneys for NYCHA

475 Park Avenue South

New York, New York 10016

(212) 530-3900
Carol R. Edmead, J.

In motion sequence 001, plaintiff moves pursuant to CPLR 306-b to deem the summons [*2]and complaint timely served. Defendant New York City Department of Transportation ("DOT") cross-moves to deny plaintiff's motion, to transfer the action to a Differentiated Case Management ("DCM") part, and, pursuant to CPLR 3211(a)(7), to dismiss plaintiff's complaint and any cross-claims asserted against DOT for plaintiff's failure to commence this action within the one-year and ninety day statute of limitations provide by General Municipal Law 50-i.

In motion sequence 002, defendant New York City Housing Authority ("NYCHA") moves pursuant to CPLR 3211(a)(5) to dismiss plaintiff's complaint.[FN1]

Factual Background

Plaintiff Mary Murray ("plaintiff") alleges that on November 5, 2012, she sustained personal injuries when she tripped and fell on a speed-bump on the roadway at or near the entrance of the property located at 80 Dwight Street in Brooklyn, New York.

On January 24, 2013, plaintiff filed a notice of claim with NYCHA concerning this matter.[FN2] On February 19, 2013, NYCHA served a demand for an oral examination pursuant to Public Housing Law ("PHL") 157 and General Municipal Law ("GML") 50-h; the hearing was noticed for March 27, 2013.[FN3] On June 10, 2013, plaintiff appeared for a hearing at which she was examined by DOT.

Plaintiff's counsel claims that on February 27, 2014, it discovered that the summons and complaint had not been filed due to a "clerical error." The next day, February 28th, counsel attempted to file an "Order To Show Cause For Extension Of Time To File Action Pursuant To CPLR 306-b" (the "OSC"). Included as an exhibit to the OSC was a copy of the summons and complaint. Plaintiff's counsel also claims that his office purchased an index number for this action within 24 hours of being made aware of the clerical error.

The Clerk of the Court rejected the OSC and returned it for correction, stating that "What you have up as a petition is an O/S/C. You can not commence that way. please re file your affirmation in support as your petition, wait for your index number than [sic] file your O/S/C." A second filing of the OSC was made on May 1, 2014, and subsequently rejected.

Then, plaintiff filed the summons and complaint on May 5, 2014, and completed service on May 9, 2014.[FN4] Plaintiff also contends that the Clerk of the Court advised that a motion to deem the action timely commenced was the proper course of action to take.

Plaintiff's Motion

In support of her motion, plaintiff contends that under CPLR 306-b, the court should grant an extension to file the summons and complaint in the interests of justice. Further, plaintiff [*3]maintains that defendants have not been prejudiced by the approximately three-week delay in receiving the summons and complaint.

In opposition, defendants argue that CPLR 306-b allows for a discretionary extension of time only to serve (as opposed to filing) the summons and complaint beyond the prescribed 120-day period after the filing of the pleadings, and does not authorize an extension of time to file or commence an action. Thus, since plaintiff filed the complaint on May 5, 2014, after the statutory period expired, the action is barred by the statute of limitations and plaintiff's purported service of process was a nullity.

In reply, plaintiff argues that the time to serve the summons and complaint may be extended based on a time delay in the 50-h hearing. The originally scheduled date for the 50-h hearing was March 9, 2013, but was not held until approximately 90 days after on June 10, 2013. Caselaw provides that under PHL 157, where a demand for the oral examination has been served, no action shall be commenced unless the claimant has duly complied with such demand, and thus, the time to serve the pleadings is to be extended by the same period by which the 50-h hearing was delayed. Therefore, the May 2014 filing of the summons and complaint was timely. And, there is no prejudice to defendants by the minor delay.

Further, plaintiff contends that the summons and complaint was filed on February 28, 2014 as part of the OSC filed on that date. Thus, the proper date to be referenced for document filing purposes of the summons and complaint in this case is February 28, 2014. Counsel only filed the summons and complaint on May 5 based on instructions given by the Clerk of the Court.

Discussion

CPLR 306-b requires that upon the timely filing of the summons and complaint, the plaintiff must serve same upon the defendants within 120 days after such filing (see Leader v Maronev, Ponzini & Spencer, 97 NY2d 95, 100 [2001]). Where service is not made within 120 days of timely filing, the statute allows plaintiff to seek an extension of time to effect service, upon good cause shown, or in the interests of justice (see Khedouri v Equinox, 73 AD3d 532 [1st Dept 2010]).

Nevertheless, a motion to extend the time to effect service must be denied where the action was not timely commenced (see Baptiste v John Doe, 89 AD3d 436 [1st Dept 2011] ("Since plaintiff's filing of this action was untimely, it was a nullity, and there was no service period to extend'"); Gonzalez v New York City Health and Hosp. Corp., 29 AD3d 369, 370 [1st Dept 2006] ("[T]he motion court correctly found that CPLR 306-b, the provision for extension of time to serve the summons and complaint, was inapplicable here. The action was already time-barred when the summons and complaint were filed; hence, the filing was a nullity, the action never was commenced, and there was no service period to extend"); Singh v New York City Health & Hosps. Corp., 107 AD3d 780, 782 [2d Dept 2013] ("Supreme Court properly denied the plaintiff's motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendants inasmuch as the plaintiff commenced this action after the expiration of the statute of limitations period and, as a result, the filing of the complaint was a nullity")).

CPLR 203(a) directs that the time within which an action must be commenced is computed from the time the cause of action accrued to the time the claim is commenced. [*4]Pursuant to CPLR 302, an action is commenced by filing a summons and complaint with the clerk of the court.

Here, it is undisputed that: (a) plaintiff's cause of action accrued on the date of the alleged incident (November 5, 2012); and (b) the statutory deadline to commence this action as to both DOT and NYCHA was on February 3, 2014 (see Funt v Human Resources Admin. of the City of New York, 68 AD3d 490 [1st Dept 2009]).[FN5]

While the parties dispute when the summons and complaint was filed, it is undisputed that filing occurred on either February 28, 2014 or May 5, 2014; in either instance, plaintiff concedes that the filing occurred after the statutory deadline had expired.[FN6]

Since it is undisputed that plaintiff filed the summons and complaint after the statutory deadline, her motion, based solely on CPLR 306-b, must be denied, as CPLR 306-b cannot be used to extend the statute of limitations; i.e., the time to file the summons and complaint (see Baptiste, Gonzalez, and Singh, supra). Plaintiff's arguments and caselaw supporting the claim that the "interests of justice" standard within CPLR 306-b allow for an extension of time for service are inapposite to the present matter. Unlike the matter herein, in those cases, the summons and complaint had been timely filed; the only issue therein was the plaintiff's request for an extension of time to serve process (see Leader, supra; Beauge v New York City Transit Authority, 282 AD2d 416 [2d Dept 2001]). Given plaintiff's untimely filing,[FN7] the issue of service (and thus argumentation based on CPLR 306-b) is irrelevant and not controlling.

Accordingly, plaintiff's motion must be denied.

DOT's Cross-Motion

In addition to the issues discussed in the previous section which the court has resolved in favor of DOT and NYCHA DOT argues that the action should be dismissed as time-barred, and that the statute of limitations was not tolled at any time. DOT asserts, without opposition, that the only tolls applicable to GML 50-i(1)(b) relate to infancy/insanity (see CPLR 208) and/or the pendency of a motion for leave to file a late notice of claim (see Giblin v Nassau Cty. Med. Ctr., 61 NY2d 67 [1984]), and that neither situation is present in this case.

As set forth below, DOT demonstrates, without opposition, that the statute of limitations was also not tolled based on GML 50-i's requirement that a plaintiff's complaint must allege that the notice of claim was served at least 30 days before commencement of the action. [*5]Additionally, DOT further shows that the statute of limitations was not tolled during the period between the demand for, and holding of, plaintiff's GML 50-h hearing.

In Baez v New York City Health & Hosps. Corp. (80 NY2d 571, 577 [1992]), the Court of Appeals addressed the issue of a whether a statute of limitations toll applied in a wrongful death action. In citing to GML 50-i and 50-h, the Court concluded that a toll was not warranted:

Plaintiff also argues that two waiting periods built into the statutory scheme serve to toll the Statute of Limitations pursuant to CPLR 204(a). The waiting periods referred to involve the 30 days required between service of a notice of claim and commencement of an action . . . and the time necessary for a claimant to comply with an examination request before commencing an action . . . We conclude that the Legislature did not intend to extend the limitations period by inclusion of these waiting periods (cf., GML50-i [3] [providing that none of the section's provisions, including the 30-day waiting period and the § 50-h examination of claim, "shall operate to extend the (limitations) period."] (emphasis added).

Subsequently, in Doddy v City of New York (45 AD3d 431, 432 [1st Dept 2007]) the First Department cited Baez in ruling that the statute of limitations was not tolled by the 30-day waiting period imposed by GML 50-i. The court further noted that the section itself provides that "nothing contained herein or in [50-h] shall operate to extend the year-and-90-day statute of limitations" (Doddy, 45 AD3d at 432); see also Cinqumani v Cty. of Nassau, 28 AD3d 699, 702 [2d Dept 2006]; Mignott v New York City Health & Hosps. Corp., 250 AD2d 165, 171 [2d Dept 1998]). Mignott explains the reasoning for not applying a toll to an action governed by GOL 50-I as follows:

CPLR 204 (a) provides that "[w]here the commencement of an action has been stayed by ... statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced". Although CPLR 204 (a) appears, on its face, to apply to the waiting period in subdivision (5) of General Municipal Law § 50-h, General Municipal Law § 50-i (3) provides otherwise. General Municipal Law § 50-i (3) provides that "[n]othing contained ... in section fifty-h of this chapter shall operate to extend the period limited by subdivision one of this section for the commencement of an action". In short, due to General Municipal Law § 50-i (3), the waiting period in subdivision (5) of General Municipal Law § 50-h . . . does not serve as a toll of the one-year-and-90-day period of limitations in actions governed by General Municipal Law § 50-i. The no-extension language in General Municipal Law § 50-i (3) evinces the Legislature's intent to preclude the applicability of CPLR 204 (a) in actions governed by General Municipal Law § 50-i . . . .

Plaintiff does not sufficiently oppose DOT's contentions and instead, reiterates her meritless contentions regarding CPLR 306. Nevertheless, since the court has consolidated the parties' motions for joint disposition, the court will consider plaintiff's argument as to tolling (made in reply in support of her motion under CPLR 306-b) as it relates to DOT's motion.

Notwithstanding, plaintiff fails to overcome DOT's showing. In her reply, plaintiff cites Wilder v City of New York (193 AD2d 420 [1st Dept 1993]), which, in contrast with Baez and [*6]Doddy, provides that a toll may lie during the period between the demand for examination under GML 50-h and when the examination is ultimately conducted. However, Wilder involved an appeal of a motion brought solely by NYCHA challenging the timeliness of the action brought against it under PHL 157, and here, it is uncontroverted that PHL 157 does not apply to DOT. Thus, Wilder does not support plaintiff's position as against DOT, and Baez and its progeny, which apply to actions brought against municipal entities like DOT, remain controlling. Moreover, plaintiff cites no authority for why Wilder, and its holding pertaining to PHL 157, should be extended to DOT in this action.

Accordingly, and because CPLR 306-b does not provide a basis for extending the statute of limitations (as discussed, supra), the complaint must be dismissed as time-barred as against DOT (see Werger v City of New York , 283 AD2d 325 [1st Dept 2001] ("Plaintiff's complaint as against defendant City was properly dismissed in light of her failure to file her summons and complaint within the one-year-and-ninety-day limitations period imposed by GML § 50-i (1)(c))").[FN8]

NYCHA's Motion

NYCHA asserts arguments as to CPLR 306-b similar to those raised by DOT, and also maintains that the complaint should be dismissed as time-barred.

NYCHA further discusses its demand for a PHL 157 and/or GML 50-h hearing. On or about February 19, 2013, NYCHA served a demand for the hearing, which was to be held on March 27, 2013. However, three days after NYCHA served the demand, plaintiff's counsel called NYCHA and advised that plaintiff "was out of the country" and could not attend. Although plaintiff's counsel further stated that he would re-schedule the hearing upon plaintiff's return, he did not contact NYCHA at any point thereafter to do so. No hearing involving NYCHA was ever held.

In opposition, plaintiff contends that pursuant to Wilder (supra), the summons and complaint herein were timely filed, since the statute of limitations as to NYCHA was tolled for 93 days the period between when the 50-h hearing was originally scheduled (March 9, 2013, according to plaintiff) and when it was ultimately held (June 10, 2013). In Wilder, NYCHA demanded a pre-action hearing under PHL 157; the hearing was conducted 52 days after plaintiff received the demand for the hearing. The First Department held that the statute of limitations was tolled for 52 days, on the ground that no action under PHL 157 could be commenced unless the claimant had complied with the defendant's demand for a pre-action hearing (Wilder, 193 AD2d at 420).

Thus, under Wilder, plaintiff argues that her filing of the summons and complaint on May 5, 2014 was timely under plaintiff's reasoning, the deadline to file the summons and complaint would have been extended by 93 days to May 7, 2014.

However, in reply, NYCHA reaffirms that it is undisputed that NYCHA never appeared at a 50-h hearing of plaintiff, and that plaintiff's counsel failed to follow through on his pledge to reschedule the hearing. Also, NYCHA notes that plaintiff submits no evidence in opposition as to this point, and that NYCHA has no information as to DOT's activities (i.e., whether DOT conducted a 50-h hearing of plaintiff).[FN9]

Accordingly, Wilder, in which NYCHA actually conducted a PHL 157/50-h hearing, does not support plaintiff's position, as plaintiff did not appear at a hearing before NYCHA due to her own actions. As such, the court finds that the statute of limitations as to NYCHA was not tolled, and the action is untimely.

And, even assuming that a toll is applicable as to NYCHA under Wilder, plaintiff's filing of her action remains untimely. Plaintiff's argument that she is entitled to a 93-day toll of the limitations period based on Wilder is unsupported by the undisputed facts of this matter. Plaintiff relies entirely on the dates which involve only DOT and not NYCHA. The PHL 157/50-h hearing as to NYCHA was originally scheduled for March 27, 2013, not March 9, 2013, as plaintiff asserts the March 9 date applied to the original date of the hearing as per DOT's demand. Moreover, assuming that plaintiff's appearance at a hearing before DOT (i.e., an appearance at any 50-h hearing, not one concerning NYCHA) could somehow establish the end date of a toll as to NYCHA, the toll, if Wilder's reasoning were applied, would have to be based on the time between NYCHA's original date for the hearing and the hearing itself. Thus, that period would be 75 days — in other words, the deadline would have been April 19, 2014 even assuming such a toll existed.

In this regard, plaintiff's contentions that she commenced the action on February 28, 2014 are unavailing. Plaintiff cites no authority for the propositions that an action can be deemed commenced by annexing the summons and complaint to an OSC, and that the summons and complaint should be deemed filed based on the filing of a motion seeking permission for late filing of a summons and/or complaint (see Lovett v City of New York, 6 Misc 3d 1032(A), 800 N.Y.S.2d 349 (Table) [Supreme Court, New York County 2005] citing CPLR § 304 ("An action is commenced when a summons and complaint or summons with notice is filed. An index number is assigned by the clerk of the court when these pleadings are filed along with the required fee. CPLR § 306—a. As a general rule, CPLR § 304 commencement by filing is not satisfied when an unexecuted order to show cause is submitted to the court with a petition; to commence the proceeding, the petitioner must file a copy of the order to show cause signed by the judge after the index number has been assigned and the fee paid")). It is undisputed that on February 28, 2014, the Clerk of the Court rejected plaintiff's OSC and noted that "you cannot commence that way." Additionally, the Clerk rejected the OSC a second time on May 2, 2014, [*7]and noted that "you [plaintiff] have to file the summons & complaint separately and not as an exhibit." With nothing more, plaintiff fails to establish that the summons and complaint were filed at any time before May 5, 2014. Accordingly, even assuming a toll applied, such toll would only have extended to April 19, 2014; thus, plaintiff's action would still be untimely under this supplemental evaluation.

In sum, even granting plaintiff all favorable inferences, her action simply is untimely beyond repair. As such, the case against NYCHA must also be dismissed.

Conclusion

Based on the foregoing, it is hereby

ORDERED that plaintiff's motion to deem the summons and complaint timely served under CPLR 306-b is denied; it is further

ORDERED that DOT's cross-motion to dismiss the complaint is granted, and the complaint and all cross-claims against DOT are dismissed with prejudice. It is further

ORDERED that NYCHA's motion to dismiss the complaint is granted, and the complaint and all cross-claims against NYCHA are dismissed with prejudice. It is further

ORDERED that DOT shall serve a copy of this order with notice of entry on all parties within 30 days of entry.

This constitutes the decision and order of the Court.

Dated: October 14, 2014______________________________________

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1:The motions are consolidated for the purposes of joint disposition herein.

Footnote 2:Plaintiff asserts that she filed a Notice of Claim with the "Office of the Comptroller" on January 24, 2013.

Footnote 3:It is unclear as to whether and when DOT served a demand for such examination, but, as plaintiff notes in reply in support of her motion, a hearing was originally scheduled for March 9, 2013. As discussed below, on February 19, 2013, NYCHA served its demand for a hearing, which was to be held on March 27, 2013.

Footnote 4:For the reasons articulated below, the issue of whether the filing of the summons and complaint occurred on either February 28 or May 5, 2013 is of no moment.

Footnote 5:With respect to DOT, it is undisputed that DOT is a New York City agency. It is further undisputed that GML 50-i(1)(c) is applicable to DOT and provides a one-year and 90 day statute of limitations period within which the action must be commenced. It is also undisputed that PHL 157(2) applies to NYCHA and provides the same one-year and 90 day statutory period within which to commence an action.

Footnote 6:Plaintiff asserts, in her Affirmation in Support of Notice of Motion, that " It is undisputed that the "Summons and Complaint was not filed within one year and ninety days (February 5, 2014) of said occurrence" (see ¶7).

Footnote 7:The court notes that plaintiff, in her moving papers, concedes that the summons and complaint were untimely filed. Nonetheless, DOT and NYCHA raise the issue of whether the statute of limitations was tolled in their respective submissions discussed further, infra. As discussed below, the court finds that the statute of limitations was not tolled as to either DOT or NYCHA.

Footnote 8:Moreover, although not discussed further, plaintiff did not challenge DOT's contentions that it is not an entity amenable to suit (see Funt, supra; Jaquez v Department of Transportation of the City of New York, 2014 WL 1321101 [Sup Ct 2014]). And, because the complaint against DOT is being dismissed with prejudice, DOT's footnote 8, cont'd. contentions regarding transfer to a DCM part need not be further addressed.

Footnote 9:Moreover, the court notes that the transcript of the June 10, 2013 50-h hearing referenced by plaintiff contains no indication that NYCHA was present at or aware of the hearing. Also, NYCHA was not referenced in the hearing, at which only plaintiff and DOT attended, and there is no evidence indicating that NYCHA had any notice of this particular hearing.