Lewis v MTA Bus Co.

[*1] Lewis v MTA Bus Co. 2016 NY Slip Op 50421(U) Decided on March 22, 2016 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2016
Supreme Court, New York County

Haji Lewis, Plaintiff,

against

MTA Bus Company, ANTHONY GIRON, TYREE DONNELL BURNS, and TOBY MICHELLE BURNS, Defendants.



160053/2014



For Defendant MTA Bus Company:

Armienti, DeBellis, Guglielmo & Rhoden LLP

By: Matthew Windman, Esq.

39 Broadway Suite 520

New York, NY 10006-3034

(212) 809-7074

For Plaintiff:

Richard K. Hershman, PLLC

By: Richard Hershman, Esq.

49 West 37th St, 7th Fl

New York, NY 10018

(212) 391-7721
Michael D. Stallman, J.

This action arises out of a motor vehicle collision that allegedly occurred on October 14, 2013, at approximately 12:00 p.m., at or around Kissena Boulevard and Maple Avenue in Queens County. Plaintiff Haji Lewis alleges that he was a bus passenger on a bus operated by defendant Anthony Giron, which was involved in a sideswipe collision with a vehicle operated by defendant Tyree Donnell Burns and owned by defendant Toby Michelle Burns.

Defendant MTA Bus Company moves to dismiss the action as against it on several grounds: (1) that plaintiff did not serve a demand upon it prior to filing the complaint; (2) that [*2]plaintiff did not appear for a statutory hearing; and (3) that plaintiff failed to respond fully to its discovery demands. In the alternative, MTA Bus Company seeks an order compelling plaintiff to appear for a statutory hearing and a conditional order of dismissal if plaintiff does not respond fully to its discovery demands. Plaintiff opposes the motion.

I.

On November 6, 2013, plaintiff's counsel allegedly mailed, by certified mail with return receipt requested, two copies of a notice of claim addressed to the MTA Bus Company at "347 Madison Avenue, 9th Floor, New York, NY 10017." (Windman Affirm., Ex A.) The return receipt was allegedly signed by a "P. Davis" on November 8, 2013. (Id.)

The MTA Bus Company claims that it served notices for plaintiff to appear for a statutory hearing pursuant to Public Authorities Law §1276 (4) on dates throughout 2014. It is undisputed that plaintiff appeared at 2 Broadway on September 5, 2014, with his four year old son and his attorney. According to an adjuster from the MTA Bus Company, he explained to plaintiff and his counsel "that the statutory hearing could not proceed because [plaintiff] had brought his four-year-old son to the hearing and MTA Bus Company had no facilities for day care, nor any insurance coverage for the provision of day care." (Windman Affirm., Ex B [Southard Aff.] ¶ 9.) According to plaintiff's counsel, after waiting 30 minutes past the scheduled hearing time, "we indicated our readiness to go forward with the hearing, that the boy had things to keep himself occupied and would not be a distraction in any respect. Despite same [the adjuster] refused to go forward." (Hershman Opp. Affirm. ¶ 10.) Plaintiff's counsel claims that the MTA Bus Company did not contact his office in writing or by phone to reschedule the hearing. (Id. ¶ 11.)

On October 14, 2014, plaintiff commenced this action. Paragraphs 2 through 5 of the verified complaint state,

"2. That at all times hereinafter mentioned defendant MTA BUS COMPANY (hereinafter referred to as MTA') was and still is an agency of the Metropolitan Transportation Authority .3. That on or about the 8th day of November, 2013 a Notice of Claim was duly served upon the MTA', which Notice of Claim set forth the name and post office address of the plaintiff and the plaintiffs [sic] attorney, the nature of the claim, the time when, the place where, the manner in which the claim arose and the items of damage and injuries sustained.4. That a copy of the said Notice of Claim is annexed hereto as Exhibit A' and the contents of same are incorporated herein.5. That more than thirty (30) days have elapsed since the service of the said Notice of Claim was presented to the "MTA" for adjustment of payment thereof, and no adjustment of payment has been made."

(Windman Affirm., Ex C [Verified Complaint] ¶¶ 2-5.) The MTA Bus Company's answer states, in relevant part: "SECOND: Denies in the form alleged the contents of paragraphs 2' of the Complaint.THIRD: Denies each and every allegation contained in paragraphs 3', 5' and 6' of the Complaint except admits that what purported to be a Notice of Claim was received by defendant, MTA BUS COMPANY, that is claimed to be the basis of the instant lawsuit; that at least thirty (30) days have elapsed from the time of the receipt of what purported to be a Notice of Claim by defendant, MTA BUS COMPANY, and commencement of this action; that adjustment and payment by the MTA BUS COMPANY has been refused; and reserved and refers all questions of law, fact and/or conclusions raised therein to the trial court."

(Windman Affirm., Ex D [Verified Answer] [emphasis supplied].)

It is undisputed that the MTA Bus Company served a demand for a bill of particulars and other discovery demands dated March 11, 2015. (Windman Affirm, Exs H, I.) Plaintiff served his response on or about March 25, 2015. (Windman Affirm., Ex J.)

By letter dated April 8, 2015, the MTA Bus Company's counsel requested "executed, original authorizations pursuant to our discovery demands dated March 11, 2015." (Windman Affirm., Ex K.) By a second letter dated April 21, 2015, the MTA Bus Company's counsel again requested the authorizations, and also requested a supplemental or amended bill of particulars with respect to certain items of plaintiff's bill of particulars. (Windman Affirm., Ex L.)

On May 5, 2015, the MTA moved to dismiss this action as against it. By an interim order dated July 30, 2015, the action was stayed due to the death of defendant Toby Michelle Burns. The stay was lifted by interim order dated November 17, 2015, after the action was discontinued as against Toby Michelle Burns per stipulation dated November 12, 2015. (NYSCEF Doc. No. 41.) The preliminary conference has not been held.

II.A.

Public Authorities Law § 1276 (1) states,

"As a condition to the consent of the state to such suits against the authority [Metropolitan Transportation Authority], in every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof."

Public Authorities Law § 1276 (1) applies to subsidiaries of the Metropolitan [*3]Transportation Authority (Public Authorities Law § 1276 [6]), and the MTA Bus Company is a subsidiary of the Metropolitan Transportation Authority. (See Rampersaud v Metropolitan Transp. Auth. of the State of NY, 73 AD3d 888 [2d Dept 2010].) Thus, as applied to the MTA Bus Company, Public Authorities Law § 1276 (1) requires that, in every action against the MTA Bus Company for personal injuries, the complaint must allege that a pre-suit demand was made upon the MTA Bus Company at least 30 days prior to commencement of suit against the MTA Bus Company, and that the MTA Bus Company "neglected or refused to make an adjustment or payment thereof." (See Andersen v Long Is. R.R., 59 NY2d 657 [1983].) Compliance with Public Authorities Law § 1276 (1) is a condition precedent to suit against the MTA Bus Company. (See Fleming v Long Is. R.R., 72 NY2d 998, 999 [1988].)

Here, the MTA Bus Company does not dispute that the complaint contains the allegations required under Public Authorities Law § 1276 (1). (See Windman Affirm., Ex C [Verified Complaint] ¶¶ 2-5.) Neither does the MTA Bus Company contend that the information contained in the notice of claim satisfied the pre-suit demand requirement of Public Authorities Law § 1276 (1).[FN1] Rather, the MTA Bus Company asserts that, contrary to the allegations, no pre-suit demand was, in fact, served upon the MTA Bus Company. Thus, whether plaintiff complied with Public Authorities Law § 1276 (1) is limited solely to the question of whether the notice of claim was sent to the MTA Bus Company at the correct address.

The MTA Bus Company asserts that the address where plaintiff's counsel mailed the notice of claim—i.e., 347 Madison Avenue—is the address of its parent, the Metropolitan Transportation Authority. According to a claims adjuster employed by the MTA Bus Company, its address is 2 Broadway, New York, New York. (Windman Affirm., Ex B [Southard Aff.] ¶ 7.)

Plaintiff indicates that the police accident report, which was submitted with the notice of claim, listed the address of "Metro Trans Auth MTA Bus Company" as "341 Madison Ave, New York, NY 10017." (Windman Affirm., Ex A.) Plaintiff also contends that the MTA Bus Company admitted to receipt of the notice of claim in its answer.

In reply, the MTA Bus Company objects to the police accident report because it is not a certified record. The MTA Bus Company also states, "Plaintiff's Notice of Claim, which was mailed by plaintiff to 347 Madison Avenue in New York County, was eventually received by MTA Bus Company because it was forwarded to the MTA Bus Company by Metropolitan Transportation Authority." (Windman Reply Affirm., Ex A [Southard Aff.] ¶ 8.)

Plaintiff's reliance on the police accident report is misplaced. Even assuming that the report may be considered, the notice of claim was clearly

not sent to the address listed on the police accident report.[FN2]

As to plaintiff's second argument, the admissions contained in the MTA Bus Company's answer raises the issue of whether it cannot assert that it was not served with a pre-suit demand due to the admissions to which it is bound. "Facts admitted by a party's pleadings constitute formal judicial admissions. Formal judicial admissions are conclusive of the facts admitted in the action in which they are made." (Zegarowicz v Ripatti, 77 AD3d 650, 653 [2d Dept 2010] [citations omitted].) "In order to constitute a judicial admission, the statement must be one of fact." (Naughton v City of New York, 94 AD3d 1, 12 [1st Dept 2012].)

Here, defendants admitted to the fact that they received "a certain paper purporting to be a notice of claim"; to the fact that "at least thirty (30) days have elapsed from the time of the receipt of what purported to be a Notice of Claim by defendant, MTA BUS COMPANY, and commencement of this action; and to the fact "that adjustment and payment by the MTA BUS COMPANY has been refused." (Verified Answer, Paragraph "THIRD".) The MTA Bus Company is bound by those facts. (Moncreiffe Corp. v Heung, 293 AD2d 324, 324 [1st Dept 2002].) Therefore, the MTA Bus Company may not, on this motion, assert any facts that are contrary to the facts to which it had admitted in its answer.

The more difficult question is whether the assertion that the pre-suit demand was not served is contrary, or inconsistent with the factual admission that it had received a notice of claim. The MTA Bus Company argues that admitting receipt of a notice of claim is not an admission that it was served. The MTA Bus Company analogizes service of the pre-suit demand to service of process; it argues that receipt of the pre-suit demand, like receipt of process, does not preclude it from raising that it was not properly served.

The Court disagrees that the requirement for a pre-suit demand to made under Public Authorities Law § 1276 (1) is akin to service of process. Service of process upon a party is to acquire personal jurisdiction over that party; if the process is not properly served, the court does not acquire personal jurisdiction over that party. Consequently, the fact that a party has received process will not cure a defect in service of process. Indeed, the Court of Appeals has stated that the demand provision of Public Authorities Law § 1276 (1) "is significantly different from the required service of a summons and complaint which commences the action and enables the court to acquire jurisdiction over the defendant (see, CPLR 304)." (Fleming v Long Is. R.R., 72 NY2d at 999.)

Unlike the rules governing service of process, Public Authorities Law § 1276 (1) does not specify the manner in which the pre-suit demand is made, or where it must be made. (See Halsey v Patel, 2008 WL 2432995 [Sup Ct, Queens 2007] [finding service of a pre-suit demand upon the MTA Bus Company's "satellite office" in Flushing complied with Public Authorities Law § 1276 (1)].) As discussed above, there is no appellate authority as to whether service of a pre-suit demand on the MTA Bus Company must be made only at the address where it accepts service of process, i.e., at its principal place of business.

Although receipt of a demand is not synonymous with the adequacy of its service, the MTA Bus Company is bound by its admissions under the circumstances. Here, the complaint clearly alleged that the notice of claim was duly served upon the MTA Bus Company. In response, the MTA Bus Company denied the allegations but admitted receipt of the notice of claim and also admitted that it refused the demand for payment.

"Denials should be direct and forthright; not indirect or coy." (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:5.) Such a denial is not direct and is misleading. The MTA Bus Company cannot have it both ways; it may not assert that it was not validly served with a pre-suit demand, and yet admit that it refused the demand as if the demand were properly made.

The MTA Bus Company contends that its twelfth affirmative defense alleged that plaintiff did not comply with a condition precedent to suit. It states,

"AS AND FOR A TWELFTH AFFIRMATIVE DEFENSESEVENTEENTH: Plaintiff has failed, as a condition precedent to commencement of the instant lawsuit, to properly plead as to defendant, MTA BUS COMPANY, as required by the Public Authorities Law[.]"

(Windman Affirm., Ex D [emphasis supplied].) The Court disagrees. By definition, an affirmative defense is intended to plead matters "which if not pleaded would likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading. . . ." (CPLR 3018 [b].) The twelfth affirmative defense alleges that there is a pleading defect, not a defect in the service of a pre-suit demand. A pleading defect in the complaint may be cured with amendment of the complaint, whereas lack of service of a pre-suit demand might be uncurable. In addition, had the MTA Bus Company wished to plead affirmatively that that the pre-suit demand was not served at all, it could have easily done so.

In light of its admissions and its denials, the MTA Bus Company is bound by its admissions, and may not assert that the a pre-suit demand was not validly made upon the MTA Bus Company, as required under Public Authorities Law § 1276 (1).

Therefore, the MTA Bus Company's motion to dismiss the action on this ground is denied.

B.

Public Authorities Law § Section 1276 (4) states,

"The [Metropolitan Transportation] authority may require any person, presenting for settlement an account or claim for any cause whatever against the authority, to be sworn before a member, counsel or an attorney, officer or employee of the authority designated for such purpose, concerning such account or claim and when so sworn to answer orally as to any facts relative to such account or claim."

This section is applicable to the MTA Bus Company, which is a subsidiary of the Metropolitan Transportation Authority. (Public Authorities Law § 1276 [6].) The language of Public Authorities Law § 1276 (5) is identical to Public Authorities Law § 1212 (5).

According to a claims adjuster from the MTA Bus Company, plaintiff appeared for a statutory hearing on September 5, 2014, but the statutory hearing did not go forward because plaintiff brought his four-year-old child with him, and the MTA Bus Company had no facilities for day care. (Southard Aff. ¶ 10.) The claims adjuster asserts that he offered to reschedule the hearing at plaintiff's convenience, but plaintiff's attorney stated that his client would not return. [*4](Id. ¶ 11.) Plaintiff's counsel denies that he refused to reschedule the statutory hearing. According to plaintiff's counsel, the MTA Bus Company did not contact his office to reschedule the hearing, and counsel therefore argues that the hearing was waived.

In Hernandez v New York City Transit Authority (41 Misc 2d 123 [Sup Ct, NY County 1963], affd 20 AD2d 968 [1st Dept 1964]), the court ruled that compliance with a demand for a hearing before the New York City Transit Authority pursuant to Public Authorities Law § 1212 (5) is not a condition precedent to suit. The court reasoned,

"There is no prohibition in that section to the commencement of an action until compliance with the demand for examination as provided in section 50-h of the General Municipal Law.Nor can it be held that section 1212 of the Public Authorities Law must be read in the light of the provisions of section 50-h of the General Municipal Law. Section 1212, insofar as it refers to the General Municipal Law, does so only with respect to section 50-e and the serving of notice."

(Id. at 124.) Citing Hernandez, the Appellate Division, First Department has ruled "there is no prohibition in the Public Authorities Law to the commencement of an action until compliance with a demand for an examination" before the NYCTA and MABSTOA. (Cespedes v City of New York, 301 AD2d 404, 405 [1st Dept 2003].)[FN3]

Because the language of Public Authorities Law § 1276 (5) is identical to Public Authorities Law § 1212 (5), compliance with a demand for an examination before the MTA Bus Company is not a condition precedent to suit.

Therefore, the MTA Bus Company's motion to dismiss the action on this ground is denied.

That being said, the Court does not find that the MTA Bus Company waived its right to conduct a statutory hearing pursuant to Public Authorities Law § 1276 (4). The Court therefore grants the branch of the MTA Bus Company's motion to compel plaintiff to appear for a statutory hearing, which shall take place on or before May 25, 2016.

C.

The MTA Bus Company contends that plaintiff's discovery responses were not complete because it had not received authorizations from plaintiff, and the bill of particulars lacked responses as to some items. According to the MTA Bus Company, the bill of particulars lacked plaintiff's full social security number, the plaintiff did not provide the information sought in item 11, and plaintiff objected to items 10, 12, and 13 of the MTA Bus Company's demand for bill of particulars. (Windman Affirm. ¶ 39.)

Plaintiff apparently supplied authorizations for the release of medical records. (Hershman Affirm., Ex B.) The authorizations apparently bear plaintiff's full social security number.

Plaintiff agreed to provide the amounts claimed for special damages, which was properly demanded for a bill of particulars. (CPLR 3043 [a] [9].) Plaintiff must therefore serve a supplemental bill of particulars as to item 11 within 45 days.

Contrary to plaintiff's objection, the collateral source information sought in item 13 may be demanded in a bill of particulars. (McKenzie v St. Elizabeth Hosp., 81 AD2d 1003, 1004 [4th Dept 1981] ["There is no reason why this information should not be the subject of a bill of particulars"].) However, this demand appears to be moot because plaintiff apparently provided an authorization for the release of no-fault records from the MTA Bus Company. (See Hershman Opp. Affirm., Ex B.)

Plaintiff's objections to items 10 and 12 of the demand for bill of particulars are sustained. These items demanded the name and address of medical providers who treated plaintiff for the alleged injuries, whether plaintiff received any prior treatment to the body parts allegedly injured, and the dates, names, and addresses of those prior medical providers as well. While such demands bear on issues that would be relevant to plaintiff's alleged injuries (and therefore damages), the demands are outside the scope of a bill of particulars. (CPLR 3043 [a].) "A bill of particulars is not a form of disclosure....[It] is of limited scope and may not be used to obtain evidentiary material.'" (Tully v Town of N. Hempstead, 133 AD2d 657 [2d Dept 1987] [citations omitted].)

In light of the discovery that plaintiff furnished, the MTA Bus Company's motion to strike the complaint based on plaintiff's non-compliance with discovery is denied. Neither is a conditional order striking the complaint unless plaintiff provides the discovery warranted. The MTA Bus Company has not established that plaintiff's non-compliance with its discovery demands was willful, contumacious, or in bad faith. (Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011].)

CONCLUSION

Accordingly, it is hereby

ORDERED that the branch of the motion by defendant MTA Bus Company to dismiss the complaint as against it is denied; and it is further

ORDERED that the branch of the motion by defendant MTA Bus Company, in the alternative, to compel plaintiff to produce discovery is granted in part, and within 45 days, plaintiff shall serve a supplemental bill of particulars as to item 11, plaintiff shall appear for a statutory hearing on or before May 25, 2016, and the remainder of the motion is denied; and it is further

ORDERED that the parties shall appear for a preliminary conference in IAS Part 21, 80 Centre St Room 278 on April 21, 2016 at 11 a.m.

Copies to counsel via NYSCEF.

Dated: March 22, 2016

New York, New York

ENTER:

/s/

J.S.C. Footnotes

Footnote 1:A notice of claim is not required for the MTA Bus Company, which is a subsidiary of the Metropolitan Transportation Authority. (Stampf v Metropolitan Transp. Auth., 57 AD3d 222, 222 [1st Dept 2008] [detailed letter sent to the LIRR by petitioner's former attorney constituted the requisite demand on the LIRR].)

Footnote 2:Thus, the Court need not reach the question of whether a notice of claim delivered to an address listed on a police accident report, or a vehicle registration for the MTA Bus Company, would constitute a valid pre-suit demand upon the MTA Bus Company. There is no appellate authority as to whether service of a pre-suit demand on the MTA Bus Company must be made only at the address where it accepts service of process, i.e., at its principal place of business.

Footnote 3:In sharp contrast to the Appellate Division, First Department, the Appellate Division, Second Department holds, "Compliance with Public Authorities Law § 1212(5) is a condition precedent to the commencement of an action against the New York City Transit Authority." (Vartanian v City of New York, 48 AD3d 673, 674 [2d Dept 2008].)