Opinion
No. 157576/13.
06-17-2014
Melissa GUZY, Plaintiff, v. NEW YORK CITY and The New York City Transit Authority, Defendants.
Vince A. Sicari, Esq., Paramus, NJ, for plaintiff. Wallace D. Gossett, Esq., by: Jane Shufer, Esq., Brooklyn, for defendant New York City Transit Authority. Michael A. Cardozo, Esq., Corporation Counsel, by: Anthony Bila, Esq., Assistant Corporation Counsel, New York, for defendant City of New York.
Vince A. Sicari, Esq., Paramus, NJ, for plaintiff.
Wallace D. Gossett, Esq., by: Jane Shufer, Esq., Brooklyn, for defendant New York City Transit Authority.
Michael A. Cardozo, Esq., Corporation Counsel, by: Anthony Bila, Esq., Assistant Corporation Counsel, New York, for defendant City of New York.
MICHAEL D. STALLMAN, J.
Decision and Order
In this personal injury action, defendant New York City Transit Authority (N.Y.CTA) moves for summary judgment dismissing plaintiff's complaint as against it (Motion Seq. No. 001). Defendant City of New York (City) separately moves for summary judgment dismissing the action as against it (Motion Seq. No. 002). This decision addresses both motions.
BACKGROUND
Plaintiff alleges that, on October 13, 2011, while crossing the street within a crosswalk at East 23rd Street and Park Avenue South in Manhattan, she was struck by an NYCTA bus. On November 15, 2011, plaintiff served a notice of claim on the NYCTA. (Shufer Affirm. Ex. A.) By letter dated January 17, 2012, the NYCTA noticed plaintiff to appear for a statutory hearing, for which plaintiff purportedly appeared on February 3, 2012. (Sicari Opp. Affirm. Ex. B, Ex. 1 at 5.)
Meanwhile, on January 25, 2012, the NYCTA's No–Fault Unit advised plaintiff,
“We have received your application for No–Fault benefits but are unable to consider payment of your claim at this time for the reason(s) stated below:
FURTHER REVIEW OF THE NO–FAULT CLAIM IS NECESSARY TO PROCESS THE CLAIM.” (Sicari Opp. Affirm. Ex. C.)
By letter dated February 3, 2012, the NYCTA's No–Fault Unit requested an Independent Medical Examination in further investigation of the claim. (Sicari Opp. Affirm. Ex. D.) By letter dated, February 9, 2012, Utopia Claims Concepts scheduled an Independent Medical Examination of plaintiff for the No–Fault claim for February 29, 2012. (Sicari Opp. Affirm. Ex. E.)
By letter dated February 13, 2012 addressed to the NYCTA, “Attention: Investigator Anthony P. Braxton”, plaintiff's counsel requested the NYCTA to provide the police report, investigation report, disposition of summons, if any and all materials the NYCTA possessed regarding the alleged incident. (Sicari Opp. Affirm. Ex. F.) By letter dated April 26, 2012, plaintiff's counsel again wrote to Braxton:
“I have left several messages with your office attempting to confirm that a No Fault File has been opened and that my client will have coverage ... I am hopeful that this letter will create a level of urgency this case deserves.
Furthermore, I have yet to receive a single document from your office regarding the investigation of this accident, disciplinary measures taken against the driver, video, photos, or any discovery pertaining to this accident. The lack of information and cooperation leads me to believe I should place this matter directly into litigation and not attempt settlement discussions when my client completes her treatment.” (Sicari Opp. Affirm. Ex. G.)
By letter dated August 6, 2012 to the NYCTA, “Attention: No–Fault Unit”, plaintiff's counsel outlined which medical records had been received and which were still outstanding. (Sicari Opp. Affirm. Ex. H.) By letter dated October 4, 2012, plaintiff's counsel wrote to Braxton, requesting that the NYCTA advise plaintiff as to whether it would consider re-opening plaintiff's No–Fault file. (Sicari Opp. Affirm. Ex. I.)
By letter dated October 19, 2012 from “New York City Transit Authority, Law Department, Claims Investigation and Adjustment,” the NYCTA wrote to plaintiff's counsel,
“An action now pending against the New York City Transit Authority arises from an accident that occurred:
* * *
To aid in the completion of our investigation of this case, kindly forward the following information to the attention of the claim examiner listed below. We need:
AUTHORIZATIONS FOR RELEASE OF MEDICAL AND EMPLOYMENT RECORDS[.] PLEASE SEND ALL SPECIALS AND NAMES AND ADDRESSES OF ALL WITNESSES. INCLUDE DATE OF BIRTH AND SOCIAL SECURITY NUMBER.”
(Sicari Opp. Affirm. Ex. J.) Braxton apparently signed the letter.
On July 1, 2013, plaintiff filed an action in Middlesex County Superior Court in New Jersey, “based on plaintiff's residence and minimal contacts under civil procedure law.” (Sicari Opp. Affirm., Ex. 1 [Plaintiff's Opp. Mem.] at 7; Shufer Affirm. Ex. B, C.) On August 8, 2013, the NYCTA filed a motion to dismiss in Middlesex County Superior Court. (Shufer Affirm. Ex. C.) On August 15, 2013, before a decision was reached on the NYCTA's motion to dismiss, plaintiff commenced this action in this Court. (Shufer Affirm. Ex. E.) By decision and order dated September 12, 2013, in Middlesex County Superior Court, Hon. Randall Corman granted the NYCTA's motion to dismiss on the ground of lack of personal jurisdiction. (Shufer Affirm. Ex. D.)
I.
The NYCTA moves to dismiss the action as time-barred. Plaintiff opposes the motion. Plaintiff argues that the statute of limitations was either tolled or extended, and that the NYCTA is equitably estopped from raising the statute of limitations as a defense.
A.
“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.”
(Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 AD3d 815, 816 [2d Dept 2008] [citations omitted]; Matter of Estate of Baird, 58 AD3d 958, 959 [3d Dept 2009] ; see Brignoli v. Balch, Hardy & Scheinman, 178 A.D.2d 290, 290 [1st Dept 1991] [“The defendant bears the burden of proof on an affirmative defense”].)
Public Authorities Law § 1212(2) provides that, “Except in an action for wrongful death, an action against the [NYCTA] shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based....” Public Authorities Law § 1212(1) requires that the complaint “contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority....” Thus, “it has been held that the effect of such a statute is to extend the general period of limitation by an additional 30 days.” (Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 5 [1967];see Serravillo v. New York City Tr. Auth., 42 N.Y.2d 918[1977] [statute of limitations tolled for duration of 30 day extension]; Burgess v. Long Is. R.R. Auth., 79 N.Y.2d 777, 778 [1991] [“This stay' of 30 days is not counted as part of the limitations period”].)
Therefore, as the NYCTA acknowledges (Shufer Affirm. ¶ 11), for the purposes of determining whether an action founded on tort against the NYCTA (except an action for wrongful death) is time-barred under Public Authorities Law § 1212(2), the statute of limitations period is effectively one year and 120 days, instead of one year and 90 days.
The NYCTA has met its prima facie burden of demonstrating that this action is time-barred. Plaintiff commenced this action on August 15, 2013, more than one year and 120 days after the alleged incident on October 13, 2011.
One year and 120 days after October 13, 2011 fell on February 10, 2013, which is a Sunday. General Construction Law § 25–a extended plaintiff's time to commence an action to the next business day, Monday, February 11, 2013.
B.
In opposition, plaintiff argues the statute of limitations should be tolled because “there was a continuing investigation and the claim and/or claims were still open and unknown necessarily tolling the statute [of limitations]” (Plaintiff's Opp. Mem. at 17), citing Herrera v. New York City Tr. Auth. (234 A.D.2d 207 [1st Dept 1996] ) and other cases. Plaintiff also asserts that “plaintiff could and should fall under a statutory tolling provision.” (Plaintiff's Opp. Mem. at 25). Plaintiff does not cite any particular tolling provision of the CPLR but cites Campbell v. City of New York (4 NY3d 200 [2005] ), where the Court of Appeals held that General Municipal Law § 50–i was a statute of limitations subject to tolling under CPLR 205(a).
1.
To the extent that plaintiff argues that CPLR 205(a) tolled the statute of limitations in this case, this argument lacks merit.
CPLR 205(a) provides:
“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” (emphasis added)
Here, plaintiff commenced an action in New Jersey, and then commenced an action in New York. However, plaintiff's New Jersey action was dismissed for lack of personal jurisdiction; on its face, CPLR 205(a) excludes dismissals based on the failure to obtain personal jurisdiction. Moreover, CPLR 205(a) is inapplicable because this action was commenced before the New Jersey action was dismissed.
Finally, “the six months-extension period will not append to an action brought in either a state or federal court outside New York.” (Siegel, N.Y. Prac § 52, at 76 [5th ed 2011] ; 1 Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 205.09; 1–2 Weinstein, Korn & Miller CPLR Manual § 2.13; Lehman Bros., Inc. v. Hughes Hubbard & Reed, L.L.P. 245 A.D.2d 203, 204 [1st Dept 1997] [prior Texas state court action is not a prior action' within the meaning of CPLR 205(a) ”]; Talarico v. Thomas Crimmins Contr. Co., 1995 WL 422034, 1995 U.S. Dist LEXIS 10053, *6–7, [SD NY, July 18, 1995, Patterson, J.] [prior New Jersey state court action is not a prior action for purposes of CPLR 205(a) ].) The rationale is that
“[l]imitations of actions are matters within the concern of the forum. Commencement of suit in another state will not toll or otherwise affect the provisions for limitation of actions in the state of the forum.” (Baker v. Commercial Travelers Mut. Acc. Assn. of Am., 3 A.D.2d 265 [4th Dept 1957] [construing predecessor to CPLR 205 ].)
2.
Plaintiff appears to rely on Herrera v. New York City Transit Authority (234 A.D.2d 207 [1st Dept 1996] ) for the proposition that the statute of limitations was tolled during the entire period during which the NYCTA was investigating plaintiff's claims, including the claims that were submitted to the NYCTA's No–Fault Unit. Plaintiff's reliance on Herrera is misplaced.
In Herrera, the Appellate Division, First Department ruled that the statute of limitations was tolled “from the period of time between the date the defendant noticed plaintiff to appear for an oral examination and the date the statutory hearing was actually held.” (Id. ) The Appellate Division stated, “in light of the unique circumstances presented here, where among other things, the transcript of the examination itself refers to General Municipal Law § 50–h, we hold that the interests of justice require that this time not be included when calculating the time within which plaintiff was required to commence his action.” The Appellate Division ruled that because the defendant had served the plaintiff with a notice to conduct an oral examination of the plaintiff, “[a]t that point, plaintiff could not successfully prosecute his claim until the examination was completed.” (Id. ) Thus, Herrera does not stand for the broad proposition that the statute of limitations is tolled during a period of “investigation.”
Herrera appears limited to its facts, given that there is no reported case citing Herrera where such a toll was ever applied again. Herrera should not be extended given its “unique circumstances” and because the toll was recognized in the interest of justice. “In general, courts have no power to extend the statute of limitations in the interest of justice.” (Dioguardi v. Glassey, 5 AD3d 430, 430 [2d Dept 2005].) It is questionable whether the premise in Herrera that the plaintiff “could not successfully prosecute his claim [against the NYCTA] until the examination was completed” remains good law. Since Herrera, the Appellate Division, First Department ruled in Cespedes v. City of New York (301 A.D.2d 404, 404 [1st Dept 2003] ) that a claimant's compliance with a demand for a statutory hearing pursuant to Public Authorities Law § 1212 is not a condition precedent to suit, unlike compliance with a demand for a hearing pursuant to General Municipal Law § 50–h.
Even if Herrera were good law and were to apply in this case, the statute of limitations in this case would be tolled, at most, by 17 days. The NYCTA noticed plaintiff to appear for a statutory hearing by letter dated January 17, 2012, and the hearing was purportedly held 17 days later on February 3, 2012.
The remaining line of cases on which plaintiff relies (Plaintiff's Mem. at 10–14) are not relevant, as those cases deal with failure to file a timely notice of claim and not a failure to commence a timely action. (Brown v. New York City Tr. Auth., 172 A.D.2d 178 [1st Dept 1991] ; Gruber v. Erie County Water Auth., 71 AD3d 1572 [4th Dept 2010] ; Losada v. Liberty Lines Tr., 155 A.D.2d 337 [1st Dept 1989] ; Matter of Kaiser v. Town of Salina, 20 A.D.2d 312 [4th Dept 1964].)
3.
Plaintiff argues that the NYCTA is estopped from asserting the statute of limitations defense. Plaintiff's argument is not persuasive.
“The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense ... Thus, this Court has held that equitable estoppel will apply where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.' Moreover, the plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations.”
(Zumpano v. Quinn 6 NY3d 666, 673 [2006] [citation omitted].)
Here, plaintiff contends that “plaintiff constantly requesting information and being told that further investigation is needed believed that the claim or claims were still under investigation by [the NYCTA]” show that “[the NYCTA] acted in bad faith.” (Sicari Opp. Affirm., Ex. 1 at 25.) However, plaintiff has not demonstrated the exceptional circumstances that would warrant application of the doctrine of equitable estoppel.
There is no indication that plaintiff did not have enough information to commence an action in New York by February 11, 2013 or by February 28, 2013 (if the Court were to assume the toll in Herrera was applicable). The NYCTA letters, particularly that of October 19, 2012, relied upon by plaintiff, do not induce plaintiff “by fraud, misrepresentations or deception to refrain from filing a timely action.” (Zumpano, 6 NY3d at 673.)
The investigation of a plaintiff's claims for no-fault benefits has no bearing on a plaintiff's ability to commence an action. Moreover, it would appear that the investigation was incomplete because plaintiff purportedly did not provide the NYCTA's No–Fault Unit with the requested authorizations. To the extent that the investigation remained incomplete due to plaintiff's conduct, plaintiff's own lateness cannot be bootstrapped to estop the NYCTA from asserting the statute of limitations as a defense.
Therefore, for all of the reasons stated above, the NYCTA's motion to dismiss is granted.
II.
The City moves to dismiss the complaint as against it on the grounds that plaintiff's claim is time-barred and that plaintiff failed to file a timely notice of claim as required by General Municipal Law § 50–e. Plaintiff does not oppose the City's motion. Therefore, the City's motion is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motions to dismiss by defendants NYCTA (Motion Seq. 001) and the City (Motion Seq. 002) are granted, and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and all cross claims against these defendants are dismissed, and the Clerk is directed to enter judgment accordingly in favor of said defendants.