Lerner v New York City Tr. Auth.

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Lerner v New York City Tr. Auth. 2020 NY Slip Op 32381(U) July 20, 2020 Supreme Court, New York County Docket Number: 157559/2019 Judge: Suzanne J. Adams 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 07/21/2020 04:50 PM NYSCEF DOC. NO. 52 INDEX NO. 157559/2019 RECEIVED NYSCEF: 07/21/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SUZANNE J. ADAMS PART IAS MOTION 21 Justice -----------------------------------------------------------X KARINA LERNER, Plaintiff, INDEX NO, 157559/2019 MOTION DATE N/A MOTION SEQ. NO. 001 -vNEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY, JOHN OR JANE DOE DECISIO.N + ORDER ON MOTION Defendant. -------------------,----------·-----------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, .8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 42, 44, 45, 46, 49 were read on th'1s motion to/for AMEND CAPTION/PLEADINGS Upo11 tl1e foregoing docu1nents, _plaintiff's n1otion by order to show cause is granted to the exte11t that plaintiff's Notice of Clai1n dated December 12, 2018, is deemed ti:mely served nunc pro tune; plaintiff may amend the sum111ons and complaint to substitute "Simon Yim" in place-of "John or Jane Doe;" -and defendants New Yorl( C1ty Transit Authority and MTA Bus Com_pany (together, "Trm1sit") are directed to provide plai11tiffwith Simon Yitn's last la1own address within 30 days. The re1nainder of the.motion is denied. This matter arises out of an incident that occurred on May 29, 2018, when plaintiff·was a· passenger on a Transit-owned bus. Plaintiff alleges the bus stop.ped abruptly in the vicinity of West and Ml1rray Streets in Manhattan, causing her to· be thrown about the blts atid sustain p·ersonal injuries. Plai11tifffiled a Notice of Claim dated July 9, 2018, but witl1 the C.ity of New York; not Transit. (Affirmation in Support, Exh. F) Thereafter, plaintiff filed a Notice o,fClaim With Transit on December 12, 2018, and now seeks to have such notice deemed timely nuncpro tune. ·She alsq 1.57559f2019 LERNER, KARINA vs. NEW YORK CITY TRANSIT Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 07/21/2020 04:50 PM NYSCEF DOC. NO. 52 INDEX NO. 157559/2019 RECEIVED NYSCEF: 07/21/2020 seeks to amend the summons and complai.nt to add the nELme of the bus operator at the.time of the subject incident in place of"Jolu.1 or Jane Doe" and co1npel Transit to accept service on-his ·behalf, or alternatively, provide his last known address. Trru1sit opposes the motion. Pursuant to General Municipal Law § s·o-e (5), leave inay be given to -senre a late. Notice of Claim at the discretion of the court, taking into pa1ficular consideration whether the public corporation, its attorney or its insurance carrie.r acquired actual knowledge in a timely fashion of the essential facts of the disp11ted incident. Additional factors. to be co11sidered include whether the petitioner made ai1 excusable en·or as to the pu'bic corporation's identity, and Wh·etl1er- serVirig the late Notice would substantially prejudice tl1e public cbrporation. In this matter, plaintiff_ti_mely filed a no-fault claim regarding. the incident, and provided a copy of the claim directly to Transit by letter dated June 22, 2018, which was within a month of the incident. (A'ffirmation in Stlpport, Exh. B) Such notice has been deemed to constitute a sufficient Notice of Clai1n within tl1e.meanin·g of GML § 50-e (5). Losada v. Liberty Lines Transit. Inc., 155 A.d.2d 337, (1'1 Dep't 1989). Fu1ihern1ore, in view of the fact that Transit co11ducted the statutory 50-I-J he_aring in Match 20·19 (Affi11nation in Support, Exh. D) and served an answer in August 2019 to plaintiff's timely served· Summons and Complai11t which admitted to the receipt of a Notice of Claim (Affirmation in Support, Exh. E), there is no den1onstration of prejudice to Transit. Plaintiff·s_ serving th·e initial Notice of Clai1n on the City of New York ratl1er than Transit was also "an exc11sable error concerniI1g the identity of the public corporation against which t11e clai1n should be asserted." GML § 50~e (5). Accordingly, the Notice of Claim dated December 12, 2018, is deemed timely served nunc pro tune. Plaintiff also seeks to add Simon Yin1, t11e operator of the bus at jssue, as ·a defendant in place of"Joht1 or Jane Doe." Pursuant to CPLR 3025(b), "[a] party may amend his pleading; or 15755912019 LERNER, KARINA vs. NEW YORK CITY TRANSIT Motion No, 001 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 07/21/2020 04:50 PM NYSCEF DOC. NO. 52 INDEX NO. 157559/2019 RECEIVED NYSCEF: 07/21/2020 supplement it by setting fo1tl1 additional or subsequent transactions or occurrences,_ at any tin1e by leave of court or by stipulation of all parties." Leave to antend pleadings is generally _freely granted, abse11t prejudice and-sluprise.resulting from the delay. See Edenwald C:on_tr. Co . v City of New York, 60 N.Y.2d 957, 959 (1983); Antwe1pse Diamantbank N. V v. Nisse/, 27 AD3d 207, 208 (1st- Dep't 2006). Transit's reference to the recent decision oftl1is court in Rodriguez v. New York Cit;1 Transit Authority, et al., Index No 160316/2017, is unavailing, as Transit fails to establish how adding Simon Yim as a defendant is a surprise, or in any other way prejudicial to it. Accordingly, it is hereby ORDERED that plaintiff's Notice of Claim dated December 12, 2018, is dee1ned timely served nunc pro tune; and it is further ORDERED that plaintiff may amend the Su1mnons and Complaint to substitute "Simon Yim" in place of"John or Jane Doe;"; and it is further ORDERED that the caption in this action is amended to read as follows: --------------------------------------------------------------------------X KARINA LERNER, Plaintiff, -againstNEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY and SIMON YIM, Defendants. ---------------------------------------------------------------------------X and it is further ORDERED tl1at the A:tnended Swn1nons and Co1nplaint annexed to plaintiff's_ moviI1g papers as Exhibit J shall be served upon_ Simon Yim pursuant to t11e CPLR upon plaintiffs learning nfl1is last lmown address; and it is further 157559/2019 LERNER, KARINA vs. NEW YORK CITY TRANSIT Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 07/21/2020 04:50 PM NYSCEF DOC. NO. 52 INDEX NO. 157559/2019 RECEIVED NYSCEF: 07/21/2020 ORDERD that Transit shall provide plaintiff with Simon Yim's last known address within 30 days of the entry of this Order; and it is fu1il1er ORDERED that within 30 days of entry of this order plaintiff shall serve a copy, with notice of entry, upon all parties, the County Clerk (Basement of 60 Centre) and the, Clerk of Trial Support (Room 148 of 60 Centre), who shall mark their records to reflect the amendment to the caption. This constitt1tes the decisio11 and order of the Court. 7120/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: SUZANNE J. ADAMS; ~ CASE DISPOSED GRANTED D NON.FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 157559/2019 LERNER, KARINA vs. NEW )'ORK CITY TRANSIT Motion No. 001 4 of 4 J.s.c. D OTHER D REFERENCE Page 4 of4

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