Opinion
Index No. 154372/2023 MOTION SEQ. No. 001
01-03-2024
IDEL NEGRON, JOSEPH RIVERA Petitioners, v. MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY, Respondents.
Unpublished Opinion
PRESENT: HON. DENISE M. DOMINGUEZ Justice
DECISION + ORDER ON MOTION
Denise M. Dominguez Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 13, 14, 15, 16, 18, 19,20 were read on this motion to/for LEAVE TO FILE.
Upon the foregoing documents, and following oral argument, the order to show cause to serve a late notice of claim on Respondent MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY ("MABSTOA") is granted and, upon granting the order to show cause, the Petition is dismissed.
The underlying incident which gives rise to the within application concerns Petitioner NEGRON's claim that the Petitioner sustained personal injuries when the bus in which they were a passenger stopped short on March 28, 2022 while traveling on 86th Street, between Park Avenue and Madison Avenue in Manhattan. The subject bus is identified as bus number 5449 on the M86 route. Petitioner RIVERA has a loss of services claim. (NYSCEF Doc. 6).
The Petitioners seek to serve a late notice of claim on Respondent MABSTOA, alleging that they failed to include MABSTOA as a possible owner/operator of the subject bus when the initial notice of claim was served on The City of New York ("the City"), New York City Transit Authority ("NYCTA") and the Metropolitan Transportation Authority ("MTA"), on or about June 2, 2022 (NYSCEF Doc. 6).
As the incident occurred on March 28, 2022, the Petitioner had until June 26, 2022 to timely file a notice of claim pursuant to General Municipal Law §50-e.
In support of the motion, Petitioner NEGRON's September 19, 2022 50-h hearing transcript, conducted on behalf of the City, and January 24, 2023 statutory hearing, conducted on behalf of the NYCTA and MTA, are submitted (NYSCEF Doc. 2, 3). An affidavit of merit on behalf of Petitioner NEGRON is attached to the Petition, and is not separately efiled (NYSCEF Doc. 1). Petitioners also submit the previously filed notice of claim and the proposed notice of claim (NYSCEF Doc. 6, 10). Following the filing of the within motion, and after the Order to Show Cause had been signed, and without leave of Court, the Petitioners filed the purported results of a FOIL search received regarding this incident (NYSCEF Doc. 16). Following the filing of the purported accident report, Respondent MABSTOA filed its affirmation in opposition (NYSCEF Doc. 18). As MABSTOA had the opportunity to review and respond to the purported accident report, it will be considered by this Court. However, without leave of Court, the Petitioners filed a reply affirmation to MABSTOA's opposition (NYSCEF Doc. 20). As the Petitioners did not request, and were not granted permission by this Court to submit a reply affirmation, same will not be considered by this Court.
A court, pursuant to General Municipal Law §50-e, has discretion to grant or deny a timely application for an extension of time to serve a late notice of claim upon a public entity (General Municipal Law §50-e [5]; CPLR §217-a; Pierson v. City of New York, 56 N.Y.2d 950 [1992]).
In evaluating whether leave to file a late notice of claim should be granted, "[t]he key factors which the court must consider... are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense.... the presence or absence of any one factor is not determinative... and the absence of a reasonable excuse is not fatal." (Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [1st Dept 2003] internal citations omitted; see Matter of Morris, 88 A.D.2d 956,957, 451 N.Y.S.2d 448 [2d Dept 1982], affd sub nom.; See Morris v. Suffolk Cnty., 58 N.Y.2d 767, 445 N.E.2d 214 [1982]; See Matter of Porcaro v. City of New York, 20 A.D.3d 357, 799 N.Y.S.2d 450 [1st Dept 2005]).
Great weight must be given to whether the public entity acquired actual knowledge of the essential facts constituting the claim within ninety (90) days or within a reasonable time thereafter (General Municipal Law §50-e [5]; see Bertone Commissioning v City of New York, 27 A.D.3d 222 [1st Dept 2006]; see Matter of Orozco v City of New York, 200 A.D.3d 559, 161 N.Y.S.3d 1 [1st Dept 2021], leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022]); However the mere "... knowledge of the facts underlying an occurrence does not constitute knowledge of the claim. 'What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the 'claim'." (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, 860 [1990], aff'd, 78 N.Y.2d 958, 580 N.E.2d 406 [1991], quoting Thomann v. City of Rochester, 256 N.Y. 165, 172, 176 [1931]; see also Kim v. City of New York, 256 A.D.2d 83, 681 N.Y.S.2d 247 [1st Dept 1998]).
Additionally, it is the burden of the petitioner to demonstrate that the late notice of the claim will not be substantially prejudicial. (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]). "Once there has been an initial showing regarding the lack of substantial prejudice toward the public corporation or municipality, the public corporation or municipality is required to make a 'particularized or persuasive showing that the delay caused them substantial prejudice'." (Orozco v. City of New York, 200 A.D.3d 559, 563, 161 N.Y.S.3d 1 (2021), leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022], quoting Lawton v Town of Orchard Park, 138 A.D.3d 1428, 1428 [4th Dept 2016]; see (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]).
Upon review, the Petitioner met the burden in establishing the key factors warranting leave to file a late notice of claim against the MABSTOA.
Here, Petitioner NEGRON, avers in the affidavit of merit, that while a passenger on an M86 bus in Manhattan on Mach 28, 2022, the bus stopped short while traveling along 86th Street, causing her to fall to the floor of the bus, sustaining injury. Petitioner NEGRON further avers that following the accident, she was transported from the scene by ambulance. (NYSCEF Doc. 1). As per Petitioner NEGRON's 50-h hearing transcript, the subject bus came to a stop when the vehicle in front of the bus same to a sudden stop (NYSCEF Doc. 2).
In support of the Petition, the Petitioners argue that following their initial investigation, it was concluded that the appropriate parties, who were the likely owner/operator of the subject bus were the City, NYCTA and MTA. The initial notice of claim asserts claims sounding in negligence against the City, NYCTA and MTA based upon their ownership, operation, and control of the subject bus. In March of 2023, it was apparently realized for the first time that MABSTOA was not concluded in the initial notice of claim. However, no explanation is provided for why MABSTOA was not included in the initial notice of claim. Nor is any explanation provided as to why, nearly a year after the accident was it believed that MABSTOA was a viable party as a potential owner/operator of the subject bus. Ignorance of the law (see Rodriguez v. New York City Health & Hosps. Corp, 78 A.D.3d 538, 911 N.Y.S.2d 347 [1st Dept 2010]) or law office failure (Santiago v. New York City Transit Auth., 85 A.D.3d 628, 925 N.Y.S.2d 500 [1st Dept 2011]) are not reasonable excuses for untimely service of the notice of claim. Accordingly, the Petitioners to not show any excuse for failing to include MABSTOA in the initial notice of claim, let alone a reasonable one. However, "the absence of a reasonable excuse is not fatal." (Dubowy 305 A.D.2d at 321, supra).
Here, the Petitioners argue that MABSTOA had actual knowledge of the underlying facts of the incident giving rise to the claim when it occurred because the accident was investigated that same day and as Petitioner NEGRON was transported from the scene by ambulance. Petitioners also argue that MABSTOA is not prejudiced because the accident was investigated immediately after it occurred. Although nothing in Petitioner NEGRON's affidavit of merit or prior testimony shows that Petitioner NEGRON had knowledge that the accident was investigated, the accident reports obtained from the Petitioners' FOIL request show that an investigation was conducted immediately after the accident (NYSCEF Doc. 16). Upon review, the accident report is consistent with the details of the incident as set forth in the initial notice of claim, and supports Petitioner NEGRON's prior testimony that the subject bus was caused to come to a stop to avoid a collision when the vehicle traveling in front of the bus came to a sudden stop.
Upon review, the Petitioner has submitted sufficient evidence to support that MABSTOA had actual knowledge of the underling facts constituting a claim sounding in negligence, and would not be prejudiced if the notice of claim were to be deemed served, as the accident report shows that the subject incident was investigated immediately after it occurred.
Respondent MABSTOA opposes the application, arguing that the accident report does not provide sufficient notice of the Petitioners' claim. MABSTOA does not offer any argument, evidence or affidavit objecting to the authenticity of the accident report. Rather, Respondent MABSTOA argues that the accident report does not establish actual knowledge of the potential claim. This Court disagrees. Although the creation of an incident/accident report, in and of itself, may not be sufficient to show actual knowledge of a claim, upon review, there is sufficient information in the accident report to provide notice of a potential negligence claim. The details of the accident including the date, time, location and specific bus are provided, as is notice of multiple individuals who claimed to have been injured, and were transported by EMS. The name of the bus operator is also included as are the Supervisors involved with the investigation. Moreover, a description of the accident is provided with sufficient details to establish potential liability for a claim sounding in negligence due to the sudden stopping of the bus. (see Rao v. Triborough Bridge & Tunnel Auth., 223 A.D.2d 374, 637 N.Y.S.2d 3 [1st Dept 1996]; cf Green v. New York City Hous. Auth., 180 A.D.2d 586, 580 N.Y.S.2d 743 [1st Dept 1992]; cf. Mittermeier v. State, 101 A.D.3d 426, 955 N.Y.S.2d 25 [1st Dept 2012]). It is also clear that the investigation commenced within an hour of the accident occurring and that the Supervisor(s) had the opportunity to take photos at the scene and speak with both the bus operator and several passengers.
In opposition, MABSTOA offers no evidence, or affidavit from someone with knowledge, that it did not own/operate the subject bus, did not have an investigator at the scene and/or did not employ the bus operator. Nor has MABSTOA demonstrated how it might be prejudiced should the notice of claim be permitted to be served late. MABSTOA argues that it is prejudiced because it could not conduct a contemporaneous investigation. Without support of any evidence or affidavit, this argument is belied by the accident report concerning this incident. As the Petitioners have shown that MABSTOA will not be prejudiced as an investigation was conducted immediately, it was incumbent upon MABSTOA to show how it would be prejudiced. MABSTOA has made no such showing.
In evaluating an application to serve a late notice of claim, courts must balance the intent of the General Municipal Law §50-e to protect public entities from "unfounded claims and to ensure that [they] have an adequate opportunity 'to explore the merits of the claim while information is still readily available'" alongside the rights of individuals to bring forth legitimate claims (Porcaro 20 A.D.3d at 357 supra., quoting Teresta v. City of New York, 304 N.Y. 440, 443, 108 N.E.2d 397 [1952]). Additionally, whether the Petitioners are ultimately successful in proving that the bus' sudden stop was unusual or violent is immaterial to the within application (Weiss v. City of New York, 237 A.D.2d 212, 655 N.Y.S.2d 34 [1st Dept 1997]; See also Castillo v. New York City Transit Auth., 188 A.D.3d 484, 133 N.Y.S.3d 576 [1st Dept 2020]).
Upon review, the Petitioner has demonstrated that the filing of a late notice of claim on the MABSTOA is warranted in this matter.
Accordingly, it is hereby
ORDERED that this Petition seeking to serve a late notice of claim upon Respondent MABSTOA is granted; and it is further
ORDERED that the proposed notice of claim annexed to the Petition (NYSCEF Doc. 10) is deemed timely served upon respondent nunc pro tunc; and it is further
ORDERED that upon due notice, Petitioners shall appear for a statutory hearing pursuant to the directives of General Municipal Law § 50-h, unless waived by Respondent.
This constitutes the decision and order of the court.