Jacobs v Metropolitan Transp. Auth.

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[*1] Jacobs v Metropolitan Transp. Auth. 2018 NY Slip Op 28218 Decided on July 9, 2018 Supreme Court, Nassau County Brandveen, J. 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 printed Official Reports.

Decided on July 9, 2018
Supreme Court, Nassau County

Meredith Jacobs and FRED LEE, Individually and on behalf of all others similarly situated, Plaintiff,

against

Metropolitan Transportation Authority et. al., a/k/a MTA, MTA, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAILROAD, Defendant.



606977/17



DEREK SMITH LAW GROUP PLLC

by PAUL LIGGIERI, ESQ.

ATTORNEY FOR PLAINTIFFS

30 BROAD STREET

35TH FLOOR

NEW YORK, NY 10004

212-587-0760

PAUL@DEREKSMITHLAW.COM

ATTORNEY FOR DEFENDANTS:

MARK D. HOFFER, ESQ.

GENERAL COUNSEL

by KEVIN MCCAFFREY, ESQ.

THE LONG ISLAND RAILROAD

LAW DEPARTMENT - 1143 JAMAICA STATION

JAMAICA, NEW YORK 11435

718-558-6820
Antonio I. Brandveen, J.

The following papers having been read on this motion:



Notice of Motion, Affidavits, & Exhibits 1, 2

Answering Affidavits

Replying Affidavits

Briefs: Plaintiff's / Petitioner's 3

Defendant's / Respondent's 4

Upon the foregoing papers, the motion by the defendants, the Metropolitan Transportation Authority ("MTA") and the Long Island Railroad ("LIRR"), for an order dismissing the amended complaint pursuant to CPLR §3211(a) (1) and (7), is granted pursuant to CPLR 3211 (a) (7) to the extent that the third cause of action for intentional infliction of emotional distress is dismissed as this cause of action does not seek to vindicate a private right and the plaintiffs failed to timely file a notice of claim (see, Seifullah v. City of New York, 161 AD3d 1206; Kassapian v. City of New York, 155 AD3d 851).

This is a purported class action on behalf of the passengers of the LIRR who suffered during the so-called "summer of hell" in 2017, as well as in January 2018, as a consequence of inter alia extensive infrastructure problems which needed emergency repair and construction work (see, e.g.,New York Times, "Penn Station Commuters are Plotting a Plan B," June 20, 2017, p. A21). The primary legal basis for the plaintiffs' first and second causes sounding in breach of contract and negligence is Transportation Law § 96, which requires a "corporation ...or common carrier performing a service...[to] furnish...service and facilities [that] shall be safe and adequate in all respects..." The complaint and plaintiff's legal arguments appear to track as its model an article published in 1984 by the Fordham Urban Law Journal, "Availability of a New York Class Action for Railroad Commuters: David v. Goliath" (12 Fordham Urb. L.J. 841).

The defendants' motion at bar to dismiss is based upon the legal doctrine of soverign immunity and the well-settled statutory requirement that the plaintiffs are required to file and serve notices of claims pursuant to the Public Authorities Law as a prerequisite before any monies can be recovered based on theories of tort or contract. The plaintiffs admit that they did not file any notice of claim, nor did they cross-move for permission to file a late notice of claim. They rely instead on the slim reed of the appellate court-created "public interest exception" to the notice of claim requirement (see, Mills v. County of Monroe, 59 NY2d 307, 312). This court agrees with the plaintiffs' contention that since the purported class action case at bar seeks to vindicate a public interest - that the defendants maintain safe and adequate facilities and service in accordance with the Transportation Law - and that the disposition of that claim will directly affect the rights of the public, this action falls within the public interest exception to the notice of claim requirement (see generally, 423 S. Salina St. v. Syracuse, 68 NY2d 474, 493).

The defendants' argument regarding sovereign immunity may be renewed in a motion for summary judgment (see, e.g., Abraham v. City of New York, 39 AD3d 21; compare, Sydlowski v. Town of Bethlehem, __AD3d__,__NYS3d__, 2018 NY Slip Op 04066 [Third Dept., June 7, 2018]).

The defendants shall file and serve their answer within twenty days after the service of a copy of this order on them. The parties' attorneys shall appear for a preliminary conference to schedule all discovery on August 20, 2018, at 9:30 a.m.in the preliminary conference part.

The foregoing constitutes the decision and order of this Court.



Dated: July 9, 2018

E N T E R:

_________________________

J. S. C.