Lodziato v City of New York

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Lodziato v City of New York 2019 NY Slip Op 31032(U) April 17, 2019 Supreme Court, New York County Docket Number: 159180/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 04/17/2019 03:37 PM NYSCEF DOC. NO. 22 INDEX NO. 159180/2018 RECEIVED NYSCEF: 04/17/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART IAS MOTION 32 Justice --------------------------------------------------------------------------------X INDEX NO. 159180/2018 THOMAS LODZIATO, MOTION DATE Plaintiff, MOTION SEQ. NO. -vTHE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, LEON D. DEMATTEIS CONSTRUCTION CORPORATION 001 DECISION AND ORDER Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 16, 17, 19,20 . were read on this motion to/for DISMISS Moving defendant New York City School Construction Authority's motion to dismiss is denied. Background This case stems from injuries allegedly suffered by plaintiff on September 8, 2017 while he was performing construction work at a school in Manhattan. It is undisputed that plaintiff commenced a personal injury lawsuit on October 3, 2018, which is more than one year but less · than one year and ninety days from the date of the accident. If the statute of limitations is one year, then this case is untimely as against movant. If the statute oflimitations is one year and ninety days, then the case is timely. This motion calls upon this Court to determine the appropriate statute for cases against this movant. New York City School Construction Authority brings this motion to dismiss, alleging that that the suit is barred by the statute of limitations pursuant to Public Authorities Law ("PAL") § 159180/2018 LODZIATO, THOMAS vs. CITY OF NEW YORK Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 04/17/2019 03:37 PM NYSCEF DOC. NO. 22 INDEX NO. 159180/2018 RECEIVED NYSCEF: 04/17/2019 1744(1 ), which calls for a one year statute of limitations. 1-· In response, plaintiff claims that the Public Authorities Law is not the applicable"statute. Instead, plaintiff argues that the one year and ninety day statute provided in the 2013 Uniform Notice of Claim Act, as codified in CPLR § 217a (hereinafter CPLR 21 7-a), is the controlling law and applies to New York City public entitie.s that are subject to a notice of claim. Neither party denies that the New York City School Construction Authority is an entity that is subject to a notice of claim and that a notice of claim was timely filed here. Discussion CPLR 21 7-a states Actions to be commenced within one year and ninety days "Notwithstanding any other provision of law to the contrary, and irrespective of whether the relevant statute is expressly amended by the uniform notice of claim act, every action for damages or injuries to real or personal property, or for the destruction thereof, or for personal injuries or wrongful death, against any political subdivision of the state, or any instrumentality or agency of the state or a political subdivision, any public authority or any public benefit corporation that is entitled to receive a notice of claim as a condition precedent to commencement of an action, shall not be commenced unless a notice of claim shall have been served on such governmental entity within the time limit established by section fifty-e of the general municipal law, and such action must be commenced· in compliance with all the requirements of section fifty-e and subdivision one of section fifty-i of the general municipal law. Except in an action for wrongful death against such an entity, an action for damages or for injuries to real or personal property, or for the destruction thereof, or for personal injuries, alleged to have been sustained, shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued or within the time period otherwise prescribed by any special provision of law, whichever is longer. Nothing herein is intended to amend the court of claims act or any provision thereof.'' 1 Defendant urges the Court to follow Justice Saunders' 2018 decision, holding that PALI 744 governs the statute of limitations for a case against the New York City School Construction Authority (Stack v City of New York, Sup Ct, New York County, August 14, 2018, Saunders V., index No. 152824/2018). That decision, however, was decided without opposition and therefore has no persuasive value. 2 159180/2018 LODZIA TO, THOMAS vs. CITY OF NEW YORK Motion No. 001 of 4 . Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 04/17/2019 03:37 PM NYSCEF DOC. NO. 22 INDEX NO. 159180/2018 RECEIVED NYSCEF: 04/17/2019 The issue in this case is whether PAL § 1744 or CPLR 217-a governs the statute of limitation~ in cases against movant. Defendant argue that the Uniform Notice of Claim Act (now codified as CPLR 217-a) does not supersede PAL § 1744 because § 1744 was not expressly listed in the Uniform Notice of Claim Act as being subject to a change in statute of limitations, whereas other sections of PAL were explicitly list~d. However, this argument fails because the one year and ninety day statute oflimitations applies to statutes, "irrespective of whether the relevant statute is expressly amended by the uniform notice of claim act ... " (CPLR 217-a). Movant further argues that even if CPLR 217-a is the governing law, the one year statute of limitations in PAL § 1744 still applies because CPLR 217-a allows for a different statute of limitations to apply if otherwise prescribed. Movant cites the following portion of CPLR 217-a,to support that point: [an action] "shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued or within the time period otherwise prescribed by any special provision of law ... " However, this portion of the statute as cited in the defendant's papers leaves out a crucial part of the statute. The full text of the statute that defendant cites, states ·that an action, "shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued or within the time period otherwise prescribed by any special provision of law, whichever is longer" (emphasis added). Thus, even if another statute of limitations governs, CPLR 217-a makes it clear that whichever statute of limitations is longer controls. The Court finds that CPLR 217-a is the governing law. It was enacted in order to set a uniform process for causes of action against state or municipal entities, ·and public authority or. public benefit corporations (New York Bill Jacket, 2013 A.B. 1051, Ch. 24). Section 217-a of the 159180/2018 LODZIATO, THOMAS vs. CITY OF NEW YORK Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 04/17/2019 03:37 PM NYSCEF DOC. NO. 22 INDEX NO. 159180/2018 RECEIVED NYSCEF: 04/17/2019 CPLR created a uniform statute oflimitations of one year and ninety days for personal injury cases brought against such entities, which includes the movant here. Accordingly, it is hereby ORDERED that the defendant's motion to dismiss is denied, and it is further ORDERED that the defendant answer pursuant to the CPLR. Counsel are directed to appear for a preliminary conference in Room 432 at 60 Centre Street on June 11, 2019 at 2:15 pm. DATE CHECK ONE: ARLENE P. BLUTH, J.S.C. CASE DISPOSED GRANTED NON-FINAL 0 DENIED APPLICATION: SEITLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~1cARLENE P. BLUTH GRANTED IN PART SUBMIT ORDER 1~9180/2018 LODZIATO, THOMAS vs. CITY OF NEW YORK Motion No. 001 FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of4 4 of 4 r \

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