Bowers v City of New York

[*1] Bowers v City of New York 2015 NY Slip Op 52031(U) Decided on December 17, 2015 Supreme Court, Queens County Gavrin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2015
Supreme Court, Queens County

Deborah Bowers, Plaintiff,

against

The City of New York and THE NEW YORK CITY TRANSIT AUTHORITY, Defendants.



701990/13



Plaintiff's attorney:

Brian J. Isaac, Esq.

Pollack, Pollack, Isaac, & DeCicco

225 Broadway, Suite 307

New York, New York 10007

212-233-8100

Defendants' attorney:

James G. Preston, Esq.

Preston Law Firm, P.C.

118A Jackson Avenue

Syosset, New York 11791

516-322-3990
Darrell L. Gavrin, J.

The following papers numbered 1 to 5 read on this motion by defendants to dismiss the plaintiff's complaint pursuant to CPLR 3211 and 3212 for failure to timely serve the notice of claim, and cross motion by plaintiff for leave to amend, nunc pro tunc, her notice of claim, complaint, and bill of particulars pursuant to CPLR 3024 and 3025.

Papers/Numbered

Notice of Motion - Affirmation - Exhibits 1

Notice of Cross Motion - Affirmation - Exhibits 2

Plaintiff's Supplemental Affirmation - Exhibits 3

Affirmation in Opposition - Exhibits 4

Reply Affirmation 5

Upon the foregoing papers, it is ordered that the motion and cross motion are determined as follows:

In this personal injury action, plaintiff alleges that she fell on a defective step, part of a marked "S2" stairway of the 46th Street subway station, Astoria, County of Queens, City and State of New York. On June 1, 2012, plaintiff served defendants with her notice of claim. Pursuant to plaintiff's notice of claim, the accident occurred on March 2, 2012. Defendants, New York City Transit Authority (NYCTA), contend that based upon the accident date of March 2, 2012, plaintiff's 90-day statutory filing deadline expired on May 31, 2012 and thus, plaintiff's service of her notice of claim on June 1, 2012 exceeded the filing deadline by one day. Defendants move to dismiss plaintiff's complaint as untimely pursuant to General Municipal Law (GML) § 50-e and Public Authorities Law § 1212. In support of their motion, defendants rely on plaintiff's notice of claim and the transcript of plaintiff's testimony at the statutory hearing, wherein she alleged that the accident occurred on March, 2, 2012, at approximately 11:00 p.m. and March 2, 2012, at 11:30 p.m., respectively.

By her cross motion, plaintiff invokes GML § 50-e (6) and seeks leave to amend and correct her notice of claim, complaint, and pleadings to reflect the date and time of the accident as "March 3, 2012 at approximately 12:03 a.m." In ascertaining the date and time of the accident, plaintiff relies on a pre-hospital care report, which indicates that the ambulance was dispatched on March 3, 2012, at 12:03 a.m. Further, plaintiff attaches as exhibits, the police aided report and Sprint report (recording of the 911 call by a witness), both reports reflecting the call time of 12:15 a.m. on March 3, 2012. Plaintiff avers that she was mistaken as to the specifics of the accident and that she was not sure of the date "[b]ecause the time was near midnight." Plaintiff asserts that now she "believe[s] that the accident clearly happened shortly after midnight on March 3." Plaintiff states that the accident date of March 2, 2012, at approximately 12:00 a.m. in her original bill of particulars was a typographical error, and that said bill was referring to March 3, 2012, at approximately 12:00 a.m.

A notice of claim requires sufficient particularity to enable a defendant to conduct a proper investigation and evaluate the merits of the claim (see Brown v City of New York,92 NY2d 389, 392 [2000]; Bartels v City of New York, 125 AD3d 583, 586 [2d Dept 2015]).A claimant must serve a notice of claim upon the NYCTA within 90 days after the claim arises (see General Municipal Law § 50-e [1][a]). The statute of limitations for negligence actions brought against the NYCTA is one year and 90 days (see Public Authorities Law § 1212[2]; Sullivan v Atlantic Paratransit of N.Y.C., Inc., 52 AD3d 817, 818 [2d Dept 2008]). Leave to serve a late notice of claim must be sought within the one-year-and-90-day statute of limitations period (see General Municipal Law § 50-e [5]; Cassidy v Riverhead Cent. Sch. Dist., 128 AD3d 996, 997 [2d Dept 2015]).

GML § 50-e (6) permits correction of a mistake "at any stage of an action" and at "the discretion of the court" where the mistake was made in good faith and the municipality was not prejudiced (see Vallejo-Bayas v New York City Transit Authority, 103 AD3d 881, 882 [2d Dept 2013]; Roberson v New York City Housing Authority, 89 AD3d 714, 715 [2d Dept 2011]). Moreover, the court has discretion to permit such amendment even where timely service is at issue (Copeland v City of New York, 90 AD3d 691, 691-92 [2d Dept 2011] [typographical error of the accident date in the original notice of claim such that it appeared that the notice of claim was served beyond the 90-day [*2]statutory period, did not preclude the claimant from seeking relief pursuant to GML § 50-e [6]]; Sanchez v City of New York, 87 AD3d 576, 577 [2d Dept 2011] [same]). The courts in this state have consistently recognized that the notice requirement set forth in GML § 50-e "was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones" (DeLeonibus v Scognamillo, 183 AD2d 697, 698 [2d Dept 1992]).

It is undisputed that plaintiff cannot successfully seek leave to file a late notice of claim because the one-year-and-90-day period has expired (see General Municipal Law § 50-e [5]).

However, plaintiff is not seeking leave to serve a late notice of claim herein, but rather to amend and correct her notice of claim nunc pro tunc, pursuant to GML § 50-e (6), which rests at the discretion of the court. The unique circumstances presented in the instant action involve a dispute of not months or days, but rather minutes, which reflect whether the accident occurred before midnight on March 2, 2012, or after midnight on March 3, 2012.

The court recognizes the inconsistencies in the time of the alleged accident as stated in plaintiff's notice of claim, bill of particulars, and hearing transcript. Notwithstanding, the evidence before the court reflects that plaintiff's mistake was not made in bad faith. Defendants are not prejudiced by the defective notice and amendment thereto, and the record discloses no basis to presume prejudice caused by the difference of mere minutes in the time of the alleged accident (Puzio v City of New York, 24 AD3d 679 [2d Dept 2005]; Berko v City of New York, 302 AD2d 594, 595 [2d Dept 2003]). Notably, defendants do not allege prejudice in their papers. Furthermore, defendants waited almost three years to seek dismissal of the complaint, long after the statute of limitations had expired. Under these circumstances, to deny plaintiff leave to amend her notice of claim would defeat an apparently honest claim and, as a policy matter, would afford no needed protection to defendants against a dishonest claim (Dhu v New York City Housing Authority, 42 Misc 3d 1226[A], 2014 NY Slip Op 50204[U][Sup Ct, Kings County 2014], citing Schwartz v New York, 250 NY 332, 335-36 [1929]; see Herrera v City of New York, 211 AD2d 759, 761 [2d Dept 1995]).

Accordingly, in the exercise of the court's discretion, plaintiff's cross motion for leave to amend, nunc pro tunc, her notice of claim and all pleadings, is granted and therefore, defendant's motion to dismiss the complaint is denied.

Plaintiff shall serve defendants, her amended notice of claim, complaint, and bill of particulars, as annexed to her moving papers within 20 days from the date of entry of this order.

Dated: December 17, 2015

DARRELL L. GAVRIN, J.S.C.