Siegfried v Dakota, Inc.

[*1] Siegfried v Dakota, Inc. 2014 NY Slip Op 51687(U) Decided on November 25, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2014
Supreme Court, New York County

Wendy Siegfried, Plaintiff,

against

The Dakota, Inc., CON EDISON COMPANY OF NEW YORK, INC., CITY OF NEW YORK and NEW YORK TRANSIT AUTHORITY, Defendants.



150012/2014



For Defendant New York City Transit Authority

Lawrence Heisler, Esq.

By: Brigid Laughlin, Esq.

130 Livingston St, 11th Fl

Brooklyn, NY 11201

(718) 694-4756

For Plaintiff:

Bryan J. Swerling, Esq.

Law Office of Bryan J. Swerling

15 Maiden Lane, Suite 2005

New York, NY 10038

(212) 571-5757
Michael D. Stallman, J.

In this trip and fall action, defendant New York City Transit Authority (NYCTA) moves to dismiss the complaint as against it on the ground that the notice of claim is inadequate, and that the complaint fails to state a cause of action. Plaintiff opposes the motion and cross-moves for leave to amend the notice of claim.

BACKGROUND

On July 15, 2013, plaintiff served a notice of claim on defendant New York City Transit [*2]Authority. (Laughlin Affirm., Ex A.) The notice of claim, addressed to the City of New York and to the NYCTA states, in relevant part:

"2. Nature of Claim:

To recover damages for the severe and serious personal injuries, pain and suffering of WENDY SIEGFRIED due to the negligence, carelessness and recklessness of the CITY OF NEW YORK, its agents, servants and/or employees by the reasons set forth below.

3. The time when, the place where and the manner in which the claim arose:

The claim herein arose on May 11, 2013, at about 10:30 a.m. adjacent to the premises located at 1 72nd Street., in the County, City, and State of New York, when the claimant, WENDY SIEGFRIED, was caused to trip and fall due to an unsafe, negligently maintained, improperly maintained, negligently designed sidewalk, and more specifically a manhole cover located adjacent to 1 72nd Street and adjacent to the subway entrance thereat, and located near the north west corner of Central Park West. See attached photos.

Upon information and belief, said area was carelessly, negligently and improperly operated, maintained, repaired, designed, and controlled by THE CITY OF NEW YORK. . . ."

(Id.)

On September 12, 2013, plaintiff appeared at a statutory hearing. Plaintiff testified as follows:

"A. I had crossed the street. Uh, I turned north on Central Park West. Uh, and proceeded to, uh, uh, was intending to 7-, West 73rd Street. However, uh, after, um, passing the exit from, um, parallel to the exit to, uh, from the subway station, at that corner, I, uh, I fell, uh, uh, landing on my right wrist and right knee.

Q. Mm-hmm. What caused you to fall?

A. My left foot caught in a raised manhole cover in the, the, that's in the sidewalk.

Q. And what happened to you when your left foot got caught?

A. My left foot stayed in that position and the momentum, I was walking and with the momentum, my right foot kept going.

Q. Mm-hmm.

A. And, um, it, it, um, I fell. I was held in position on the left side and my right side kept going, but I went down."

(Swerling Opp. Affirm. Ex B [Tr., at 16].)

On January 2, 2014, plaintiff commenced this action. (Laughlin Affirm., Ex B [Verified Complaint].) The complaint alleges, among other things, that the NYCTA owned, managed, operated, maintained, and controlled a manhole cover adjacent to 1 West 72nd Street in Manhattan, and that there existed a defective condition on and around the manhole cover. (Id. ¶¶ 25-28, 32.) The complaint alleges that it was the duty of defendants The Dakota, Inc., Con Ed, and the City of New York to keep and maintain the sidewalk and manhole cover in a safe and proper condition, but the complaint does not make a similar allegation with respect to the NYCTA. (Id. ¶¶ 33-35.) [*3]However, the complaint does alleges that the incident "was caused solely as a result of the defendants' negligence, carelessness, and recklessness . . ." (Id. ¶ 39.)

DISCUSSION

The NYCTA moves to dismiss the action on the grounds that the notice of claim was inadequate and that the complaint fails to state a cause of action against the NYCTA. In opposition, plaintiff argues that the notice of claim is sufficient, and, in the alternative, plaintiff cross-moves for leave to amend the notice of claim pursuant to General Municipal Law § 50-e (6) should the Court rule that the notice of claim is insufficient.[FN1] The NYCTA opposes the plaintiff's cross motion.

Public Authorities Law § 1212 (2) requires service of a notice of claim upon the NYCTA that is "in compliance with all of the requirements of section [50-e] of the general municipal law." Contrary to plaintiff's argument, the NYCTA is not barred from asserting the insufficiency of the notice of claim because it was not asserted as an affirmative defense in the answer. As the NYCTA indicates, it is under no obligation to plead plaintiff's failure to comply with the statutory notice of claim requirement as an affirmative defense. (See e.g. Barnaman v New York City Health & Hosp. Corp., 90 AD3d 588, 589 [2d Dept 2011]; Reaves v City of New York, 177 AD2d 437 [1st Dept 1991] ["the failure to comply is not an affirmative defense to be asserted by defendants"].) The failure to serve a notice of claim may be raised at any time prior to trial. (Wade v NYC Health & Hosps. Corp., 16 AD3d 677 [2d Dept 2005]; Frank v City of New York, 240 AD2d 198 [1st Dept 1997].) This principle is applicable here because the NYCTA is challenging the adequacy of the notice of claim, which, if found insufficient, would be equivalent to the failure to serve a timely notice of claim.

Turning to the merits, NYCTA argues that the notice of claim did not inform it of what condition it should be investigating or any theory of negligence. The NYCTA contends that the notice of claim does not provide sufficient information as to the nature of her claim. Plaintiff argues that the notice of claim gave the NCYTA notice that plaintiff is asserting claims against the NYCTA, and that the notice of claim provided enough specificity to allow the NYCTA to conduct an investigation of the occurrence.

"General Municipal Law § 50—e (2) requires written notice, sworn to by or on behalf of the claimant,' which sets forth the name and post-office address of each claimant, and of his attorney, if any,' the nature of the claim,' the time when, the place where and the manner in which the claim arose' and the items of damage or injuries claimed to have been sustained so far as then practicable.' As we have explained,

[t]he test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate .... Thus, in determining compliance with the requirements of General Municipal Law § 50—e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the [claim]' (Brown v. City of New York, 95 NY2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 [2000] [internal quotation marks and citations omitted]).

Put another way, the plain purpose' of statutes requiring pre-litigation notice to municipalities is to guard them against imposition by requiring notice of the circumstances ... upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation' [citation omitted]."

(Rosenbaum v City of New York, 8 NY3d 1, 10-11 [2006].) "[A] notice of claim does not have to set forth a precise legal theory of recovery." (Miller v City of New York, 89 AD3d 612, 612 [1st Dept 2011].)

However, it is equally well-settled that

"Causes of action for which a notice of claim is required, that are not delineated in the plaintiff's original notice of claim, may not be interposed because [t]he addition of such causes of action which were not referred to, either directly or indirectly in the original notice of claim, would substantially alter the nature of the plaintiff[']s claims."

(Garcia v O'Keefe, 34 AD3d 334, 335 [1st Dept 2006] [internal quotation marks and citations omitted]; Manns v New York City Tr. Auth., 50 AD3d 860, 861 [2d Dept 2008]; Moore v County of Rockland, 192 AD2d 1021, 1023 [3d Dept 1993].) Thus, it would be as if the plaintiff had not served a notice of claim at all—i.e., failed to give notice—of a cause of action that cannot be referred to, either directly, or indirectly, in the original notice of claim.

There is a tension between the line of cases cited in Miller (89 AD3d 612) and the line of cases cited in Garcia (34 AD3d 334). On the one hand, Miller emphasizes that a notice of claim does not have to plead a cause of action or legal theory, but on the other hand, Garcia requires the Court to look at a notice of claim for causes of action and legal theories, to determine whether causes of action pleaded in a plenary action would "substantially alter" the nature of the claim(s) set forth in the notice of claim. Moreover, the tension exists because the Court of Appeals has reaffirmed that General Municipal Law § 50-e "does not require those things [notices of claim] to be stated with literal nicety or exactness'" (Brown, 95 NY2d at 393 [citation omitted]), yet warned that "Section 50—e does not abet notice of claim by stealth." (Rosenbaum, 8 NY3d at 12.)

In Thomann v City of Rochester (256 NY 165, 172 [1931]), a case involving a notice of claim statute for the City of Rochester similar to General Municipal Law § 50-e, Judge Cardozo ruled, "What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim.'" In Brown v New York City Transit Authority (172 AD2d 178 [1st Dept 1991]), the Appellate Division, First Department held, "Merely providing notice of the occurrence is not adequate to constitute notice of a particular claim." The Appellate Division, First Department continues to cite Brown with approval. (See e.g. Rollins v New York City Bd. of Educ., 68 AD3d 540 [1st Dept 2009]; Shmueli v New York City Police Dept., 295 AD2d 271 [1st Dept 2002].)

The distinction between "knowledge of the claim" and "knowledge of the occurrence" was discussed extensively in Bullard v City of New York, 118 AD2d 447 [1st Dept 1986].) In Bullard, the issue presented before the Appellate Division, First Department was whether permission to serve a late notice of claim should be granted pursuant to General Municipal Law § 50-e (5). The Appellate Division stated, "Under the statute, the document or record relied upon to establish knowledge on the part of the municipality must connect' the occurrence with negligence by the public corporation." (Bullard, 118 AD2d at 447).

Here, on the one hand, the notice of claim appears to give the NYCTA only knowledge of the occurrence, because, unlike the City of New York, the NYCTA is not mentioned in any of the [*4]statements set forth in the notice of claim. Although the notice of claim states that plaintiff tripped upon a manhole cover, the notice of claim does not alert the NYCTA to investigate the manhole cover, because the notice of claim states that someone else (i.e., the City of New York) negligently maintained, repaired, and designed and controlled the manhole cover. The notice of claim does not connect the occurrence with any negligent act or omission that might be attributed to the NYCTA.[FN2] On the record before this Court, the first time that plaintiff expressly states that the NYCTA negligently maintained, repaired, and designed and controlled the area where plaintiff allegedly fell appears to be in the complaint.

On the other hand, the notice of claim did provide enough information for the NYCTA to investigate whether a claim against the NYCTA had any possible merit. Based on the location stated in the notice of claim, the NYCTA could have determined on its own whether it owned, maintained or controlled the manhole cover. (Cf. Hudson v New York City Tr. Auth., 19 AD3d 648 [2d Dept 2005] [a notice of claim involving a collision with a bus was not insufficient notwithstanding that it gave incorrect information regarding the bus number, because the information supplied by the plaintiff in the notice of claim was sufficient to enable the defendants to determine the place, time, and nature of the accident].) The notice of claim provided enough details about the location for the NYCTA to perform a site inspection of manhole cover and sidewalk.

When faced with similar notices of claim, the Appellate Divisions of the First and Second Departments have reached opposite results. (Compare Tully v City of Glen Cove, 102 AD3d 670 [2d Dept 2013] with Goodwin v New York City Housing Authority (42 AD3d 63 [1st Dept 2007].)

In Tully, the plaintiff served a notice of claim upon the City of Glen Cove, and commenced an action against the City of Glen Cove to recover for property damage following severe rainstorms, alleging that the City of Glen Cove "was negligent in approving the subdivision and development of certain real property located near the plaintiff's real property and in the design, installation and/or repair and maintenance of the . . . culvert system . . . located in the vicinity of [his] premises.'" (Tully, 102 AD2d at 670.) The Appellate Division, Second Department reversed the lower court's decision denying the City's motion for summary judgment. The Appellate Division, Second Department ruled that the theories of liability alleged in the complaint were not included in the plaintiff's notice of claim, stating, "the notice of claim contained no reference to any acts or omissions attributable to the City, made no mention of the culvert system or of any type of drainage system, and did not mention any decision to subdivide the nearby property." (Id. at 671.)

In Goodwin, the plaintiff served a notice of claim upon the New York City Housing Authority (NYCHA), stating, "Claimant was walking down steps from 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor." (Id.) NYCHA advised the plaintiff by letter that it was rejecting the notice of claim because it "does not describe with sufficient particularity NYCHA's alleged negligence" and "NYCHA is severely prejudiced as it cannot [*5]conduct a proper investigation and otherwise assess the merits of the claim." (Id. at 65.) Seventeen days after the 90-day period to give notice had expired, the plaintiff's counsel served NYCHA with another notice of claim, which added, "Claimant tripped and/or slipped on broken/cracked/chipped stairs covered with debris, as claimant was walking down steps from the 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor. Claimant fell as a result of defendant's negligence in maintaining such stairway." (Id. at 66.)

The motion court granted NYCHA's motion for summary judgment on the ground that the original notice of claim was defective, in that the notice of claim failed to provide adequate information for NYCHA to investigate. The motion court did not consider the second notice of claim because it was not timely served. On appeal, the Appellate Division, First Department reversed, rejecting the argument that the first notice of claim served upon NYCHA was substantively and fatally deficient.

The Appellate Division reasoned:

"Chief Judge Cardozo held in a 1931 case involving a similar notice of claim statute in the city of Rochester that what satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim.'' (Thomann v City of Rochester, 256 NY 165, 172 [1931].) More recently, the Second Department has observed that,

courts have not interpreted the statute to require that a claimant state a precise cause of action . . . . The Legislature did not intend that the claimant have the additional burden of pleading a cause of action and legal theories . . . in the notice of claim, which must be filed within 90 days of the occurrence.'"

(Goodwin, 42 AD3d at 67-68.)

The notice of claim in Tully and the original notice of claim in Goodwin are similar in that they both did not set forth allegations from which a valid cause of action could have been implied against the public corporation. In Tully, the notice of claim did not set forth any acts or omissions attributable to the City of Glen Cove. In Goodwin, the first notice of claim did not set forth any facts that would state a valid cause of action of negligence, because no defective or dangerous condition was stated in the first notice of claim. And yet, the outcomes were different.

The difference in Tully and Goodwin can be explained by the tension in the line of cases between the line of cases cited in Miller (89 AD3d 612) and the line of cases cited in Garcia (34 AD3d 334), which was discussed earlier. In Tully, the Appellate Division, Second Department followed the approach in Garcia and looked at whether the complaint asserted a cause of action which was not referred to, either directly or indirectly, in the original notice of claim. In Goodwin, the Appellate Division, First Department applied the approach in Miller, stating that a "precise" cause of action was not required to be alleged in the notice of claim, instead of asking whether allegations that "broken/cracked/chipped stairs covered with debris" could have been fairly implied from allegations that a claimant fell while walking down steps.

Given that the Appellate Division, First Department ruled in Goodwin that the first notice of claim was not fatally deficient, the test of the sufficiency of a notice of a claim is therefore not a question of whether the notice of claim states a valid cause of action.

As plaintiff points out,

"In considering the sufficiency of a notice of claim in the context of a motion to dismiss, a court is not confined to the notice of claim itself, but may also look to evidence adduced at a § 50—h hearing, [*6]and to such other evidence that is properly before the court."

(Portillo v New York City Tr. Auth., 84 AD3d 535, 536 [1st Dept 2011], citing D'Alessandro v New York City Tr. Auth., 83 NY2d 891 [1994].) Although plaintiff relies upon her testimony at the statutory hearing to cure the deficiencies of the notice of claim, plaintiff did not testify at the hearing to any acts or omissions attributable to the NYCTA concerning the manhole cover.

As plaintiff points out, General Municipal Law § 50-e (6) provides that a "mistake, omission, irregularity or defect made in good faith in the notice of claim . . . may be corrected, supplied, or disregarded, as the case may be, in the discretion of the court, provided that it shall appear that the other party was not prejudiced thereby." Here, the lack of allegations of NYCTA's involvement in the incident appear to be an omission of just a few words from the original notice of claim. That is, plaintiff could have included "and the New York City Transit Authority" after every reference to the City of New York.

Plaintiff argues that an amendment pursuant to General Municipal Law § 50-e (6) should be permitted here because plaintiff claims that the NYCTA was not prejudiced in its investigation of the claim. However, General Municipal Law § 50-e (6) only authorizes correction of "technical defects", "not substantive changes in the theory of liability.'" (Van Buren v New York City Tr. Auth., 95 AD3d 604 [1st Dept 2012]; Betette v County of Monroe, 82 AD3d 1708 [4th Dept 2011]; Niewojt v City of Middletown, 78 AD3d 948 [2d Dept 2010]; Moore v Melesky, 14 AD3d 757 [3d Dept 2005].) [amendments of a substantive nature are not within the purview of General Municipal Law § 50-e (6)].) Under Tully, the additional words to be added in the notice of claim would be considered a substantive change in the theory of liability. Under Goodwin, the amendment that plaintiff seeks here might be permissible.

Like the first notice of claim in Goodwin, the notice of claim here implies the theory of negligence, i.e., premises liability. The amendment that plaintiff seeks for the notice of claim, i.e., that the NYCTA owned, controlled, or maintained the area where plaintiff allegedly tripped and fell, is consistent with the theory of premises liability. The manhole cover upon which plaintiff tripped was mentioned in the original notice of claim. Therefore, the proposed amendment sought does not constitute a substantive change of theory or cause of action from the original notice of claim. The NYCTA cannot claim prejudice by this amendment because the first notice of claim provided enough details about the location for the NYCTA to perform a site inspection of the manhole cover and sidewalk, and the NYCTA could have determined whether it owned the manhole cover at issue when it was served with the original notice of claim.

Thus, this Court rules that, under Goodwin, plaintiff may amend the notice of a claim to add "and the New York City Transit Authority" after every reference to the City of New York, pursuant to General Municipal Law § 50-e (6). Plaintiff's cross motion for leave to amend the notice of claim is therefore granted, and plaintiff must serve an amended notice of claim consistent with this decision and order within 60 days after entry of this decision and order.

The permitted amendment of the notice of claim cures any alleged deficiency in the original notice of claim.

Therefore, plaintiff's cross motion for leave to amend is granted, and the branch of the NYCTA's motion to dismiss on the ground that the notice of claim is insufficient is denied. However, if plaintiff fails to serve an amended notice of claim upon the NYCTA by the deadline set forth above, the NYCTA may renew its motion to dismiss.

Turning to the branch of the NYCTA's motion to dismiss on the ground that the complaint [*7]fails to state a cause of action,

"In the context of a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss."

(EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005].) Here, the complaint alleges that the NYCTA owned, managed, operated, maintained, and controlled the manhole cover at issue, that there existed a defective condition on and around the manhole cover, and that the incident "was caused solely as a result of the defendants' negligence, carelessness, and recklessness . . ." (Complaint ¶ 39.) It can reasonably inferred from these allegations that plaintiff is alleging that the NYCTA had a duty to maintain the manhole cover, even though the complaint did not explicitly assert it.

Therefore, this branch of the NYCTA's motion is denied.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss is denied; and it is further

ORDERED that plaintiff's cross motion is granted, and plaintiff must serve an amended notice of claim consistent with this decision and order within 60 days after entry of this decision and order.

Dated: November 25, 2014

New York, New York

ENTER:

/s/

J.S.C. Footnotes

Footnote 1:It appears that plaintiff did not efile a notice of cross motion. However, the NYCTA does not argue that plaintiff did not serve a notice of cross motion required under CPLR 2215.

Footnote 2:The Court disagrees with plaintiff's contention that the allegation that the location of incident was "adjacent to the subway entrance" would reasonably imply that the NYCTA had controlled maintained, repaired, and designed and controlled the area where plaintiff allegedly fell, because the notice of claim states that the incident occurred on a public sidewalk.