Lapsley-Cockett v Metropolitan Tr. Auth.

Lapsley-Cockett v Metropolitan Tr. Auth. 2016 NY Slip Op 06861 Decided on October 20, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2016
Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.
451341/13 1750A 1750

[*1] Tanya Lapsley-Cockett, et al., Plaintiffs-Respondents,

v

Metropolitan Transit Authority, Defendant, New York City Transit Authority, Defendant-Appellant.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant.

Mead, Hecht, Conklin & Gallagher, LLP, White Plains (Elizabeth M. Hecht of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about December 22, 2015, which, following a framed-issue hearing, granted plaintiffs' motion to confirm the report of a judicial hearing officer (JHO), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 2, 2014, to the extent it held in abeyance defendants' motion to dismiss the complaint as against defendant New York City Transit Authority for failure to serve a proper notice of claim, and referred the issue of service of the notice of claim to a JHO to hear and report on certain issues of fact, unanimously dismissed, without costs, as moot.

The court found credible evidence to show that the notice of claim was served, albeit by regular mail, on the Transit Authority within 90 days after the claim arose, and that the Transit Authority requested a 50-h hearing (see General Municipal Law § 50[e][3][c] ["If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant . . . be examined in regard to it"]). Thus, the "savings clause" was satisfied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2016

CLERK