Spanier v Star Cruiser Transp., Inc.

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[*1] Spanier v Star Cruiser Transp., Inc. 2007 NY Slip Op 52150(U) [17 Misc 3d 1125(A)] Decided on November 5, 2007 Supreme Court, Kings County Kramer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2007
Supreme Court, Kings County

Elias Spanier, Plaintiff,

against

Star Cruiser Transportation, Inc., Defendant.



15159/06

Herbert Kramer, J.

Is a corporation that leases Access-A-Ride vans from the New York City Transit Authority under a lease agreement entitled to invoke the the shortened statute of limitations contained within the Public Authorities Law?

Plaintiff, a 95 year old civil engineer, was a passenger in an Access-A-Ride van that was transporting him from his office to his home. The complaint alleges that as plaintiff made his way towards the exit door at his stop the van suddenly moved forward throwing him to the ground and fracturing his ribs. As a second cause of action, the complaint further alleges the van driver willfully and intentionally picked up the plaintiff with great and unnecessary violence which conduct caused or exacerbated his injuries.

This incident occurred in January of 2005 and the complaint was filed in May of 2006. Defendant moves to dismiss the complaint asserting that the action is time barred under the one year and ninety day statute of limitations set forth in Public Authorities Law §1212(2)[FN1] which refers to actions against the New York City Transit Authority and time barred under the one year and thirty day statute of limitations set forth in the Public Authorities Law which refers to actions against the Metropolitan Transportation Authority. Public Authority Law, §1276(2).[FN2] The defendant separately asserts that the second cause of action for assault is time barred by the statute of limitations which is one year for an assault claim pursuant to CPLR §215(3).

The defendant argues that a shortened statute of limitations should be applied to [*2]this action because the "the van was owned by the New York City Transit Authority and operated by its duly appointed agent pursuant to contract." In support of this argument, the defendant annexes a lease agreement between itself and the New York City Transit Authority which refers to an Access-A-Ride Paratransit Services Contract which is not attached. The lease agreement is a standard vehicle lease which does not set forth any of the terms of the paratransit services agreement.

The defendant has not directed this Court to a statutory or contractual provision that would permit suits against this defendant, which is a private corporation, to be governed by the shortened statute of limitations for suits against the Transit Authority. Public Authorities Law §1212(2). The defendant argues that Public Authorities Law §1212(3) makes the Authority vicariously liable for the acts of the defendant and thus confers the privileges of the shortened statute of limitations upon this defendant. However §1212(3) makes the Authority liable for the negligence of an employee of the Authority who operates a vehicle under the "jurisdiction and control" of the Authority. No showing has been made that the van operator was an employee of the Authority or that the vehicle in question was under the "jurisdiction and control" of the Authority.

Altro v. Conrail, 129 Misc 2d 1061(Sup. Court, Appellate Term, 1985) relied upon by the defendant is not to the contrary. In Altro the Court found that Conrail, as the successor to Penn Central had an agreement with MTA that it was to be the "common carrier with respect to the Harlem -Hudson Service." This contractual provision together with 44 million dollars worth of legislative appropriations to the carrier caused it to be deemed a "railroad facility" of the MTA for the purposes of the Public Authorities Law. These factors led the Court to conclude that the carrier was providing "an essential government function and as such was entitled to the same immunity as the MTA would enjoy." See also Singer v. Liberty Lines, 183 AD2d 820(2d Dept. 1992)( "Westchester local laws which created the transit system imposed upon the County a statutory duty to operate the system which created on obligation on the County's part to indemnify the defendant Liberty Lines). Here, by way of contrast there has been no showing of such entitlement.

The defendant attempts to argue that the shortened statute of limitations that governs suits against the Metropolitan Transportation Authority, Public Authority Law, §1276(2), controls the rights of the parties herein. However, defendant's lease agreement is with the New York City Transit Authority and Public Authority Law §1276(2) refers only to the Metropolitan Transportation Authority. See Public Authority Law, §1261(1)[FN3].

Moreover, even assuming arguendo that Public Authority Law §1276(2) controlled under our facts, there would still need to be a statutory or contractual provision that would permit suits against the defendant here in which is a private corporation to be governed by this shortened statute of limitations.

In this regard, the defendant relies upon the decision in Stekolschik v. Star Cruiser Transp. Inc., 8 Misc 3d 1023(A)(Supreme Court, Kings, County 2005). In [*3]Stekolschik, the plaintiff was the driver of a car that collided with an Access-A-Ride van leased to the defendant and owned by the Metropolitan Transportation Authority. The defendant similarly raised the statute of limitations as a bar to suit and the Court granted its motion to dismiss on that basis. The Stekolschik case is distinguishable since the defendant there had contracted with the Metropolitan Transportation Authority and here the defendant has contracted with the New York City Transit Authority and the relevant statutory provisions governing each entity differ significantly with respect to the issues at bar.

Even were this not the case, this Court disagrees with result in Stekolschik. Subdivision 5 of §1266 is the operative section of the Public Authorities Law that confers the rights and privileges of the Metropolitan Transportation Authority upon other entities. Subdivision 5 grants to "subsidiary corporations" all of the privileges of the Authority and implements a shortened statute of limitations in suits against a "subsidiary corporation." Public Authorities Law §1266(5) [FN4] Schaefer v. Long Island RR, 112 AD2d 153(2d Dept. 1985). In order to hold that the defendant stands in the shoes of the Authority and is entitled to the benefit of the shortened statute of limitations, the Stekolschik Court characterized the contractual relationship as being a "joint service arrangement," but then blurred the distinction between a "joint service arrangement" mentioned in Public Authorities Law §1266 subdivision 4 [FN5] and a "subsidiary corporation" discussed in subdivision 5 of that section.

The fact that a defendant may have a "joint service arrangement" with the Metropolitan Transportation Authority does not transform the defendant into a "subsidiary corporation" because the terms "subsidiary corporation" and "joint service arrangement" are not interchangeable. " Joint service arrangements' shall mean agreements between or among the authority and any common carrier . . . relating to property, buildings strictures, facilities services . . . for or in connection with or incident to transportation . . . " Public Authorities Law section 1261(7). By way of contrast, a "subsidiary corporation" has been described in the Public Authorities Law as follows: " . . . the city and the transit authority may enter into an agreement which shall provide that any omnibus lines hereafter acquired by the city may be leased by the city for operation and maintenance to a public benefit corporation which shall be a subsidiary of the transit authority." Public Authorities Law §1203-a(1). Under the case law, a subsidiary corporation is an entity that has been designated as such by the Authority. See e.g., Belcastro v. Long Island R.R., 55 Misc 2d 837(Sup. Court, Nassau Co., 1968).(Long [*4]Island RR is a stock subsidiary corporation); Seales v. Metro North Commuter R. Co., 205 AD2d 751(2d Dept. 1994)( Metro North Commuter R. Co. a corporate subsidiary of the Metropolitan Transportation Authority).

Thus, even were this matter subjected to the self same considerations that obtained in Stekolschik v. Star Cruiser Transp. Inc., supra, 8 Misc 3d 1023(A), this Court would decline to follow this decision. Moreover, as a matter of policy, the privileges and immunities granted to a public authority as a quid pro quo for its service to the larger community must be limited to that authority and its subsidiaries and should not be granted to an entity without a just basis in law merely because that entity may have happened to contract with a public authority.

Accordingly, this Court finds that this proceeding is timely as it is governed by the three year statute of limitations for personal injury actions, CPLR 214(5), and not the Public Authorities Law. Moreover, and with respect to the claim of assault, plaintiff is "not thereby relegated only to a cause of action for assault and battery. A single act or default causing a single injury may constitute a breach of different duties and may give rise to causes of action based upon different grounds of liability and subject to different statutory periods of limitations.' . . . since the challenged cause & lbrac; & rbrac; of action could be construed as based upon & lbrac;defendant's & rbrac; negligent supervision of . . . its . . . employee & lbrac; & rbrac; & lbrac;it is & rbrac; governed by the three-year statute of limitations for negligence, not the one-year statue for assault . . ." Jarvis v. Nation of Islam, 251 AD2d 116(lst Dept. 1998).

The defendant's motion to dismiss the complaint is denied.[FN6]This constitutes the decision and order of the Court.

J.S.C.

Footnotes

Footnote 1: The provision recites in pertinent part that "an action against the authority founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based . . ."

Footnote 2: The provision reads in relevant part: "An action against the authority founded on tort . . . shall not be commenced more than one year after the cause of action therefor shall have accrued . . . "

Footnote 3: "Authority" shall mean the corporation created by section twelve hundred sixty-three of this title." Section 1263 creates the Metropolitan Transportation Authority.

Footnote 4: " Public Authorities Law §1266(5) grants to " & lbrac;e & rbrac;ach such subsidiary corporation of the authority . . . all of the privileges, immunities, tax exemptions and other exemptions of the authority . . . & lbrac;and subjects such subsidiary corporation to & rbrac; . . . suit in accordance with section twelve hundred seventy six of this title & lbrac;which provides for a one year statute of limitations & rbrac;.

Footnote 5:"The authority may establish and, in the case of joint service arrangements, join with others in the establishment of such schedules and standards of operations . . . " Public Authorities Law § 1266(4).

Footnote 6:The parties are directed to complete all outstanding discovery in this matter within forty five days of the date of this decision.



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