Castro-Castillo v City of New York

Castro-Castillo v City of New York 2010 NY Slip Op 07803 [78 AD3d 406] November 4, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Gloria Castro-Castillo, Appellant,
v
City of New York et al., Respondents, et al., Defendant.

—[*1] Susan R. Nudelman, Dix Hills, for appellant.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered July 15, 2009, which granted defendants' motion to dismiss the complaint for failure to serve a notice of claim upon the proper party, unanimously affirmed, without costs.

Plaintiff was allegedly injured in a slip and fall on a slushy subway staircase. Although she served a timely notice of claim on the City and the Metropolitan Transportation Authority (MTA), she failed to serve such a notice upon the proper party, defendant New York City Transit Authority (NYCTA), which operates the subway system. It is well settled that service of the requisite notice of claim must be made upon the correct party (Williams v City of New York, 74 AD3d 548 [2010]), and a plaintiff may not avoid dismissal in that regard by invoking the savings provision of General Municipal Law § 50-e (3) (c) (Scantlebury v New York City Health & Hosps. Corp., 4 NY3d 606 [2005]; Diaz v New York City Health & Hosps. Corp., 56 AD3d 317 [2008], lv denied 12 NY3d 712 [2009]). The notice of claim that was served listed only the City and the MTA. Even though these papers were subsequently transmitted by those defendants to NYCTA for a hearing under General Municipal Law § 50-h, that cannot be considered appropriate service (see Cottiers v New York City Health & Hosps. Corp., 303 AD2d 187 [2003]).

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Friedman, Catterson, DeGrasse and Manzanet-Daniels, JJ.