The defendant Metropolitan Transit Authority ("MTA") moves pursuant to CPLR §§3211(a)(7) and 3212 to dismiss the plaintiff's complaint. The motion is denied without prejudice with leave to renew. The motion is moot as after service of the motion, plaintiff timely served an amended summons and complaint on February 22, 2008 adding the New York City Transit Authority (NYCTA) as a party. As such, the amended complaint has superceded the complaint.

Plaintiff Marquita Gore ("Gore") cross moves pursuant to General Municipal Law (GML) §50(e) 3(c) for an order finding that the notice of claim previously served on the MTA is a valid notice of claim against the New York City Transit Authority and/or alternatively for the Court to grant an order to file a late notice of claim pursuant to GML §50(e) 5 against the NYCTA.

In the amended complaint, the plaintiff alleges that she sustained personal injuries when disembarking from a NYCTA bus on November 9, 2006. On January 24, 2007, the plaintiff filed a notice of claim against the MTA and the City of New York. A notice of claim was not filed against the NYCTA. The notice filed against the MTA was forwarded to the NYCTA, and a letter was sent from the NYCTA to plaintiff scheduling a 50h hearing on March 16, 2007. That [*2]hearing never took place.^[FN1] On January 14, 2008, plaintiff commenced the action by filing a summons and complaint. On February 12, 2008, the MTA served its verified answer and on February 20, 2008, the City of New York served an answer. On February 13, 2008, the MTA filed the current motion to dismiss. On February 22, 2008, plaintiff filed an amended summons and complaint adding the NYCTA as a party. Plaintiff filed the instant cross-motion on March 5, 2008.In support of its cross motion to deem the notice of claim filed on January 24, 2007 against the MTA as a valid Notice of Claim against the NYCTA, the plaintiff relies on the "savings provision" under General Municipal Law (GML) §50-e(3)(c) which states;

(C) If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant or any other person interested in the claim be examinedin regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fail to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.

The Court of Appeals in Scantlebury v New York City Health and Hospitals Corporation, 4 NY3d 606 [2005], addressed the issue of whether the GML's "saving provision" applied to a case where the plaintiff failed to sue the appropriate municipality, the New York City Health and Hospitals Corporation with a timely notice of intention to commence an action, a statutory precedent to suit. Plaintiff argued on appeal that the GML § 50-e (3)(c)savings provision should apply since she served a timely notice of claim on the Comptroller of the City and a GML 50-h hearing was held. The Court of Appeals in Scantlebury stated;

"...our decisions respecting the former version of the

savings provision as well as the current version's

legislative history demonstrate that section 50-e (3)

(C) was intended to cure improper methods of service,

such as service by ordinary mail, not service on the

wrong public entity (Adkins v City of New York, 43

NY2d 346, 350-351 [1977]." (Emphasis added)

Accordingly, the Court denies plaintiffs' motion to have the prior notice of claim served on the MTA deemed as served on the NYCTA. The Court also denies plaintiff's motion to file a late notice of claim against the NYCTA as the statute of limitations has expired. It is well-[*3]settled that the Court is without jurisdiction to permit the plaintiff to comply with the notice of claim requirement after the expiration of the statute of limitations. (Hochberg v City of New York, 63 NY2d 665 [1984]). GML §50-e(5) states that "the extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation."

Public Authorities Law § 1212(2), which governs the commencement of the action against the municipality of the NYCTA reads;

"... an action against the authority founded on

tort shall not be commenced more than one

year and ninety days after the happening of

the event upon which the claim is based, nor

unless a notice of claim shall have been served

on the authority within the time limited, and in

compliance with all the requirements of section

fifty-e of the general municipal law..."

The plaintiff did not file the current motion seeking to file a late notice of claim until March 5, 2008, which is more that one year and ninety days from the accrual of the claim on November 9, 2006.

Accordingly the defendant's motion for summary judgment is denied with leave to renew.

Plaintiff's cross motion is denied in its entirety.

Robert J. Miller

J.S.C.

May 8, 2008