Opinion
13860, 150429/11
12-30-2014
Stanley WOLFSON, et al., Plaintiffs–Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants–Respondents.
Segan, Nemerov & Singer, P.C., New York (Jeff Nemerov of counsel), for appellants. Sullivan & Brill, LLP, New York (Adam A. Khalil of counsel), for respondents.
Segan, Nemerov & Singer, P.C., New York (Jeff Nemerov of counsel), for appellants.
Sullivan & Brill, LLP, New York (Adam A. Khalil of counsel), for respondents.
ACOSTA, J.P., MOSKOWITZ, RICHTER, FEINMAN, CLARK, JJ.
Opinion Order, Supreme Court, New York County (Ellen M. Coin, J.), entered April 5, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for leave to serve a late notice of claim upon defendant Phillip J. Mann, unanimously affirmed, without costs.
Plaintiff Stanley Wolfson's vehicle was allegedly struck by a bus operated by defendant Mann and owned by nonparty MTA Bus Company, a subsidiary of defendant the Metropolitan Transportation Authority (MTA).
There is no evidence that plaintiff presented the requisite demand for settlement of his claims to MTA Bus Company within the then-applicable one-year statutory period for commencing a personal injury action against a public authority (see Public Authorities Law § 1276[1], [former (2) ]; Arrigo v. Metro–North Commuter R.R., 244 A.D.2d 208, 664 N.Y.S.2d 922 [1st Dept.1997] ; see also Burgess v. Long Is. R.R. Auth., 79 N.Y.2d 777, 778, 579 N.Y.S.2d 631, 587 N.E.2d 269 [1991] ). Although there is no statutory or legal authority requiring service of a demand on an employee of a subsidiary of the MTA, the motion court properly determined that an action should not proceed against Mann individually, because MTA Bus Company, his employer, is the real party in interest (see Albano v. Hawkins, 82 A.D.2d 871, 871, 440 N.Y.S.2d 327 [2d Dept.1981] ). Indeed, it is undisputed that Mann was operating the bus owned by the MTA Bus Company during the course of his employment when the accident occurred; therefore, he is entitled to indemnification from his employer (see Public Authorities Law § 1276[3] ; Albano, 82 A.D.2d at 871, 440 N.Y.S.2d 327 ).
We have considered plaintiffs' remaining contentions and find them unavailing.