Quigley v New York City Tr. Auth.

[*1] Quigley v New York City Tr. Auth. 2013 NY Slip Op 51764(U) Decided on October 13, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2013
Supreme Court, New York County

Patrick Quigley, as the Administrator of the Estate of STACY HOLLIDAY-QUIGLEY, deceased, and PATRICK QUIGLEY, individually, Plaintiffs,

against

New York City Transit Authority, NEW YORK CITY TRANSIT AUTHORITY DIVISION OF PARATRANSIT, METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY BUS COMPANY and JOHN DOE - DRIVER (Identified as ID No.16567), Defendants.



109219/10



For plaintiff:

Friedman, Levy, Goldfarb & Green, P.C.

by: Charles E. Green, Esq.

250 West 57th St., Suite 1619

New York, NY 10107

(212) 307-5800

For defendants:

Smith Mazure Director Wilkins Young & Yagerman, P.C.

by: Robert J. Paliseno

111 John St,

New York, NY 10038

(212) 964-7400

Michael D. Stallman, J.

Upon the foregoing papers, it is ordered that defendants' motion for summary judgment is denied.

According to the notice of claim, on July 13, 2009, decedent

Holliday-Quigley was a passenger on an Access-A-Ride vehicle, which "was traveling at an excessive rate of speed southbound on FDR . . .and . . .Access-A-Ride violently jolted claimant . . .when it stopped short. By reason of said occurrence, [c]laimant [] was seriously injured." (Paliseno Affirm. Ex I [Notice of Claim].)

At her statutory hearing, which was held five months after the alleged incident, the decedent testified that she was sitting on the right hand-side in the rear of the Access-A-Ride vehicle with her seatbelt on, when the right front and passenger wheels of the vehicle jumped the curb at East 36th Street after the vehicle exited FDR Drive. (Paliseno Affirm. Ex G [Holliday-Quigley Hearing], at 13-16.) The decedent testified that the driver was "driving very fast" and that

before exiting the FDR, she said to him, "I think you need to slow down." (Id. at 19.) She further testified that after the vehicle hit the curb, the driver said, "What the hell was that?" and when she exited the vehicle, the driver asked her, "Do you think I should see a doctor, because my head and my back and my leg hurt." (Id. at 18.)

Defendants move for summary judgment on the grounds that the plaintiffs have not established a prima facie case for negligence against a common carrier, and that plaintiffs' notice of claim fails to assert the vehicle jumped the curb on the date of the alleged accident, creating a different theory of liability than what was stated in the notice of claim, i.e. that the vehicle stopped short.

As to the adequacy of the notice of claim, General Municipal Law § 50 (e) (2) requires, among other things, that the notice of claim include "(1) the name and post office address of each claimant, and of his attorney, if any; (2) the nature of the claim; [and] (3) the time when, the place where and the manner in which the claim arose. . . ." However, "the statute does not require those things to be stated with literal nicety or exactness." (Brown v City of New York, 95 NY2d 389, 393 [*2][internal quotation marks and citations omitted].) "In passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself. The relevant inquiry is set forth in General Municipal Law § 50—e(6), which provides that a mistake, omission, irregularity or defect made in good faith * * * may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.' In making this determination of prejudice, the court may look to evidence adduced at a section 50—h hearing, and to such other evidence as is properly before the court."

(D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 [1994].)

Plaintiffs' notice of claim is sufficient. The notice of claim properly identified the claimant, stated when and where the alleged accident occurred, and described the nature of the alleged claim - a sudden stop. Whether the alleged stop was caused by the driver suddenly applying the brakes or the vehicle jumping the curb, the theory of liability is still the same. Moreover, the decedent alleged in her statutory hearing that the vehicle hit the curb. The transcript of the hearing, submitted as a part of this motion, can be used to supplement the notice of claim. Plaintiffs' "allegations did not raise a new, distinct and independent theory of liability so as to prejudice the [defendants] in [the] investigation and evaluation of the claim." (Jackson v. New York City Hous. Auth., 46 AD3d 297 [1st Dept 2007].)

As to the allegations of negligence, defendants argue that the decedent was unable to estimate the speed which the vehicle was traveling, other than to characterize it as moving fast, and that there is no testimony that the decedent saw the vehicle's wheels come into contact with the curb (as opposed to a pothole or another defect in the roadway). Defendants further argue that the driver had no recollection of the alleged incident; the decedent did not complete any accident reports; and the driver's alleged statements to the decedent are inadmissible hearsay. Defendants submit a copy of the decedent's medical chart from New York University Hospital noting there were no complaints regarding neck pains made and no x-rays of the decedent's neck were taken on the day of the alleged incident to corroborate the decedent's allegations of severe neck pain. (Paliseno [*3]Affirm. Ex I.) "To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusualand violent.' Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff."

(Urquhart v New York City Tr. Auth., 85 NY2d 828, 830 [1995].)

Plaintiffs raise triable issues of fact as to whether the movement of the Access-A-Ride vehicle consisted of a jerk or jolt that was unusual or violent. Although the driver testified that he had no recollection of the incident, the decedent testified that the driver was "driving very fast" and that the vehicle jumped the curb, which raises material issues of fact. Moreover, the testimonies of the decedent and driver, as well as any conflict which might exist between the medical records and the decedent's allegations, merely present issues of credibility which are for the trier of fact, and not for the court. "On a motion for summary

judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact." (Martin v Citibank, N.A., 64 AD3d 477, 485 [1st Dept 2009].)

Without making a ruling that would be law of the case and infringe on the authority of the assigned trial justice, it would appear that plaintiffs would have a basis for arguing that the alleged statement attributable to the driver by the decedent, "What the hell was that?" was an excited utterance or that it might be offered as a present sense impression, and thus circumstantial evidence of the suddenness of the event and the driver's lack of knowledge of what happened. Irrespective of what decision is made on admissibility at the trial, even inadmissible evidence can be used under certain circumstances in order to defeat a summary judgment motion. "Hearsay evidence may be sufficient to demonstrate a triable fact where it is not the only evidence submitted" in a motion for summary judgment. (Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246, 247 [1st Dept 2002].) Therefore, defendants' motion for summary judgment is denied. [*4]

Dated: October 13, 2013/S/, J.S.C.

New York, New York