Opinion
0118396/2006.
July 19, 2007.
'The defendants Metropolitan Transportation Authority (MTA) and New York City 'Transit Authority (NYCTA) (collectively, the movants), move for an order: pursuant to CPLR 3211, dismissing the complaint and cross claims on the grounds that plaintiff and codefendants have failed to state a cause of action and fail to meet the requirements of General Municipal Law § 50 (e) and Public Authorities Law § 1212; pursuant to CPLR 321 1 (a) (5) and Public Authorities Law § 1276, dismissing this action on the ground of statute of limitations; and pursuant to CPLR 3212, granting summary judgment,
This is an action to recover damages for personal injuries suffered by the plaintiff Linton Ward (Ward), as the innocent victim of a gang assault on a subway platform.
In support of their motion, the movants allege that although the NYCTA was properly served, the MTA was never served with either a nonce of claim, or a summons and complaint.
Additionally, it is argued that the action was untimely commenced beyond the applicable statute of limitations.
In opposition to the motion, the plaintiff Wartd alleges that the notice of claim was served upon the defendants MTA and NYCTA. at 4:2br ? on Ma 13, 2005. It is argued that the VITA must have been served with a summons and complaint because it both served an answer, and conducted a General Municipal Law § 50-H hearing. Finally, it is argued that the. plaintiff Ward's cause of action is timely because it is "grounded in contract A
The defendant bears the initial burden of establishing prima facie that the time in which to sue has expired. Once such prima facie showing is made, the burden shifts to the plaintiff to aver evidentiary facts establishing either that it was timely commenced, or that the case falls within an exception to the statute of limitations (Savarcsc v Shatz, 273 AI)2d 219 |2nd Depl 2000|).
In the ease relied upon by the plaintiff Ward. Crosland v New York City Transit Authority ( 68 NY2d 165 [19861), the complaint alleged, as here, that a NYCTA employee seeing the injury being indicted, unreasonably failed to summon aid, although he could have done so without risk to himself. The Court held that such failure to act. watching someone being beaten from a vantage point offering both safety and the means to summon help without danger, was within the narrow range of circumstances which could be found to be actionable. However. contrary to the plaintiff Ward's assertion, the NYCTA employee's failure to act was actionable as a tort, not as a breach of contract.
Here, the underlying dispute can be resolved through a form of action for which a specilic limitation period is stalutorily provided, and that limitation period governs. Since the argument raised in opposition to the motion, alleging breach of contract, is merely incidental to the personal injury claim, the only purpose it serves L to circumvent the three-year statute of limitations (Gold Sun Shipping Ltd. v Ionian Transp.. 245 AD2d 420 [2nd Dept 1997]). The plaintiffs claims rely on allegations of a duty, breach of that duty, resulting personal injury, and do not even allege the existence of a contract.
At bar, the facts set forth in the complaint allege no more than causes of action lu recover damages for personal injury, which are barred by the applicable one-year and 90-day statute of limitations. The movants establish, prima facie, that Ward's cause of action to recover damages for tort, accrued, and the relevant statute of limitations began to run, upon the date of the assault, on February 1 8, 2005. This action was untimely commenced with the Filing of the summons and complaint on December 12, 2006, more than one year and 90 days after the cause of action accrued on February 18. 2005 (General Municipal Law § 50-i [I j |cj; Public Authorities Law § 1212). in the instant case, the applicable statute of limitations is one year and 90 days (Public Authorities Law § 1212(2); Pilgrim v New York Citv Transit Authority, 235 AD2d 527 [2nd Dept 1997]). Public Authorities Law § 1212 (2) requires that an action "founded on tort" shall not be commenced against defendant authorities more than one year and 90 days Aifler the happening of the event upon which the claim is based." General Municipal Law § 50-i, like Public Authorities Law $ 1217. requires that any action for personal injury sustained by reason of the negligence or wrongful act of a municipality has to be commenced within one year and 90 days after the happening of the event (Collins v City of New York, 55 NY2d 646 11981J; Melendez. v Manhattan and Bronx Surface Transit Operalimi Authority. 137 AD2d 390 [1st Dept 1985]).
Finally, it is undisputed that the notice of claim and the summons and complaint were never properly served on the MTA at 347 Madison Avenue, New York, New York.
Accordingly, it is
ORDERED that the motion for summary judgment is granted and the complaint is hereby severed and dismissed as against the defendants Metropolitan Transportation Authority, and New York City Transit Authority, and the Clerk is directed to enter judgment in favor of said defendants; and it is further
ORDERED that the remainder of the action shall continue in a City part.