Opinion
2020-05663 Index No. 509510/14
12-21-2022
Wayne DELISSER, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant, et al., defendant.
Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellant. Georgaklis & Mallas, PLLC, Brooklyn, NY (Gregory S. Lombardi of counsel), for respondent.
Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellant.
Georgaklis & Mallas, PLLC, Brooklyn, NY (Gregory S. Lombardi of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., PAUL WOOTEN, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated March 6, 2020. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2) and for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On February 8, 2014, the plaintiff allegedly sustained personal injuries when he alighted from a bus on Utica Avenue between Avenue I and Avenue J in Kings County. According to the plaintiff, as soon as he stepped down onto the roadway surface with his right foot, he encountered a hump in the roadway that caused him to twist his foot and stumble.
The plaintiff, who served a notice of claim upon the defendant New York City Transit Authority (hereinafter the NYCTA), commenced this personal injury action against, among others, the NYCTA. The NYCTA moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2) and for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court, inter alia, denied those branches of the NYCTA's motion. The NYCTA appeals.
"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v. City of New York, 95 N.Y.2d 389, 392, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ; see General Municipal Law § 50–e ; Ruark v. City of Glen Cove, 164 A.D.3d 1492, 1494, 84 N.Y.S.3d 205 ; Davis v. City of New York, 153 A.D.3d 658, 660, 61 N.Y.S.3d 551 ). General Municipal Law § 50–e(2) requires that the notice of claim set forth, among other things, "the nature of the claim" and "the time when, the place where and the manner in which the claim arose" (see Brown v. City of New York, 95 N.Y.2d at 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ; Davis v. City of New York, 153 A.D.3d at 660, 61 N.Y.S.3d 551 ). The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to " ‘locate the place, fix the time, and understand the nature of the accident’ " ( Puello v. New York City Hous. Auth., 150 A.D.3d 1164, 1164, 55 N.Y.S.3d 355, quoting Canelos v. City of New York, 37 A.D.3d 637, 638, 830 N.Y.S.2d 334 ). Claims of roadway or sidewalk defects must be set forth with great specificity because of their transitory nature (see Mack v. City of New York, 286 A.D.2d 756, 730 N.Y.S.2d 730 ; Ryan v. County of Nassau, 271 A.D.2d 428, 705 N.Y.S.2d 398 ; Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401 ). " ‘Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case’ " ( Vallejo–Bayas v. New York City Tr. Auth., 103 A.D.3d 881, 882, 962 N.Y.S.2d 203, quoting Ingle v. New York City Tr. Auth., 7 A.D.3d 574, 575, 777 N.Y.S.2d 154 ; see Ruark v. City of Glen Cove, 164 A.D.3d at 1494, 84 N.Y.S.3d 205 ). A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient, in addition to examining the "four corners" of the notice of claim, may consider the testimony provided during an examination pursuant to General Municipal Law § 50–h, as well as any other evidence properly before the court ( D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891, 893, 613 N.Y.S.2d 849, 636 N.E.2d 1382 [internal quotation marks omitted]; see Parker–Cherry v. New York City Hous. Auth., 62 A.D.3d 845, 846, 878 N.Y.S.2d 790 ; see also Davis v. City of New York, 153 A.D.3d at 660, 61 N.Y.S.3d 551 ).
Here, contrary to the NYCTA's contention, the information contained in the notice of claim, supplemented by other evidence submitted by the NYCTA in support of its motion, identified the accident site with sufficient particularity (see Ruark v. City of Glen Cove, 164 A.D.3d at 1494, 84 N.Y.S.3d 205 ; Lipani v. Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248–1249, 61 N.Y.S.3d 582 ). Moreover, the NYCTA's lengthy delay in moving to dismiss the complaint on the ground that the notice of claim was defective undermined the NYCTA's contention that it was prejudiced in not having the specific information sooner (see Hudson v. New York City Tr. Auth., 19 A.D.3d 648, 798 N.Y.S.2d 105 ). Accordingly, the Supreme Court properly denied that branch of the NYCTA's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2).
The Supreme Court also properly denied that branch of the NYCTA's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area" ( Miller v. Fernan, 73 N.Y.2d 844, 846, 537 N.Y.S.2d 123, 534 N.E.2d 40 ), and towards that end "to exercise reasonable and commensurate care in view of the dangers to be apprehended" ( Fagan v. Atlantic Coast Line R.R. Co., 220 N.Y. 301, 306, 115 N.E. 704 ; see Guzman v. New York City Tr. Auth., 162 A.D.3d 749, 750, 78 N.Y.S.3d 405 ; Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612, affd 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225 ). "Whether the defendant breached its duty to provide a passenger a safe place to alight from the bus depends on whether the bus operator could or could not have observed the dangerous condition from the operator's vantage point" ( Watson v. New York City Tr. Auth., 172 A.D.3d 957, 958, 100 N.Y.S.3d 315 ; see Lovato v. New York City Tr. Auth., 50 A.D.3d 969, 855 N.Y.S.2d 685 ). Here, based upon the evidence submitted by the NYCTA in support of its motion, which included the plaintiff's description of the alleged defect, triable issues of fact exist as to whether the bus operator could or could not have observed the condition and whether the plaintiff was provided with a safe place to alight from the bus (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Since the NYCTA failed to meet its initial burden as the movant, the burden never shifted to the plaintiff to raise a triable issue of fact (see id. at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
CHAMBERS, J.P., WOOTEN, ZAYAS and WAN, JJ., concur.