[*1]
Matter of Bass v New York City Tr. Auth.
2014 NY Slip Op 51686(U) [45 Misc 3d 1222(A)]
Decided on November 24, 2014
Supreme Court, New York County
Stallman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 24, 2014
Supreme Court, New York County


In the Matter of the Application of Jenna Bass, Petitioner,

against

New York City Transit Authority, MANHATTAN AND BRONX SURFACE TRANSPORTATION OPERATING AUTHORITY, MTA BUS COMPANY and METROPOLITAN TRANSPORTATION AUTHORITY, Respondents.




157294/2014



For petitioner:



Sullivan Papain Block McGrath & Cannavo, PC



By: Sean A. McConnell, Esq.



120 Broadway



New York, NY 10271



(212) 732-9000



For respondents New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, and Metropolitan Transportation Authority:



Lawrence Heisler, Esq.



By: Brigid Laughlin, Esq.



130 Livingston St, 11th Fl



Brooklyn, NY 11201



(718) 694-4756



For respondents MTA Bus Company and Metropolitan Transportation Authority:



Barry McTiernan & Moore LLC



By: John V. Wynne, Esq.



2 Rector St- 14th Fl



New York, NY 10006



(212) 313-3600


Michael D. Stallman, J.

Pursuant to General Municipal Law § 50-e (5), petitioner seeks leave to serve a late notice of claim upon respondents. Respondents oppose the motion.

BACKGROUND

Petitioner alleges that, on November 3, 2013 at around 12:00 p.m., she was injured when, while using the wheelchair bus ramp to board a westbound M86 Bus on 86th Street and Madison Avenue, her wheelchair tipped over. According to petitioner, the bus operator lowered the ramp into the street and not onto the curb, then stood at the ramp's edge, but moved back to the driver's seat before petitioner could fully board the ramp, which resulted in a "shift in weight" that allegedly caused the ramp to rise and flip petitioner backwards onto the ground. (Verified Petition, Ex B [Bass Aff. ¶ 4].)

It appears that the bus operator and responding supervisor prepared accident reports about the incident. One report states, in relevant part: "Incident Description: Bus standing in second lane of bus stop due to blocking autos . . . Female customer in wheelchair boarding via wheelchair ramp. Wheelchair tipped backwards causing female to fall to roadway clear of bus. Female made no injury claim, refused medical aid and left scene unassisted." (Laughlin Opp. Affirm., Ex A.) A Supervisor's Accident/Crime Investigation Report states, in relevant part:



"Arrived at scene at 1245. upon arrival found bus 5879 on E86 St bus stop between Madison Ave and Park Ave facing west.



Upon Interviewed BO. He stated that wc customer flipped back on the ramp while boarding on the bus. Customer told BO she is OK and she left.

Upon my investigation, I could not obtain information from wc customer. I recieved [sic] wc customer's name. address and age from BO. Wc customer left at scene unassisted piror [sic] my arrival.



Upon my observation, found 3 vehicles illegally parked at the rear of the bus stop. . . .Due to illegally parked vihicles [sic] bus was not able to pull to the curb. Bus ramp was 4 ft away from the curb."



(Id.) A vehicle operator report states, in relevant part, "While attempting to board the bus via the bus ramp customer potential cust. did on her own flip electric wheel chair backwards. 3 veh parked in bus stop all were issued summonses." (Id.)

According to petitioner, she was hospitalized for nearly a week and suffered trauma from the incident and the hospitalization caused her to relapse into anorexia, for which she sought treatment until June 2014. (Bass Aff. ¶ 5.)



DISCUSSION

Public Authorities Law §§ 1212 (2) and 1276 (2) require service of notices of claim upon [*2]the New York City Transit Authority (NYCTA) and Metropolitan Transportation Authority (MTA), respectively, "in compliance with all of the requirements of section [50-e] of the general municipal law." The Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA), incorrectly sued herein as Manhattan and Bronx Surface Transportation Operating Authority, is a subsidiary of the NYCTA. (Public Authorities Law § 1203-a; see Samuelsen v New York City Transit Auth., 101 AD3d 537 [1st Dept 2012].) Public Authorities Law § 1203-a (6) states that Public Authorities Law § 1212 applies to MaBSTOA.

Under General Municipal Law § 50-e (5), courts have discretion to grant an extension of time for service of a late notice of claim.



"In deciding whether a notice of claim should be deemed timely served under General Municipal Law § 50—e(5), the key factors considered 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. Moreover, the presence or absence of any one factor is not determinative.'"



(Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 467 [1st Dept 2012] [internal citations omitted]; Matter of Strauss v New York City Tr. Auth., 195 AD2d 322 [1st Dept 1993].) "Proof of actual knowledge, or lack thereof, is an important factor in determining whether the defendant is substantially prejudiced by such a delay.'" (Plaza, 97 AD3d at 471; see e.g. Padilla v Department of Educ. of City of NY, 90 AD3d 458 [1st Dept 2011]["The most important factor that a court must consider in deciding such a motion is whether corporation counsel, . . . acquired actual knowledge of the essential facts constituting the claim within the time specified'"].)

"While, as a general proposition, a court entertaining an application to serve a late notice of claim will not examine the merits, the motion is appropriately denied where the claim is patently meritless.'" (Caldwell v 302 Convent Ave. Hous. Dev. Fund Corp., 272 AD2d 112, 113-14 [1st Dept 2000].)

Here, petitioner claims that she did not serve a timely notice of claim due to her hospitalization after the incident, the resulting trauma and relapse, and "my focus on getting treatment." (Bass Aff. ¶ 5.) Petitioner contends that respondents acquired actual knowledge of the essential facts constituting petitioner's claim because the bus operator witnessed the incident, and because the respondents generated incident reports.



The NYCTA, MTA, and MaBSTOA (collectively, the Authorities) oppose the petition, arguing that the investigation did not alert the Authorities to any wrongdoing on their part. The Authorities also argue that petitioner did not offer a reasonable excuse because she offered no proof of the treatment she sought or any explanation of how the treatment prevented her from timely serving a notice of claim.



The MTA Bus Company and MTA opposes the petition on the ground that the M86 bus involved is not a bus owned, or operated by either the MTA Bus Company or the MTA.[FN1]



"What satisfies the statute is knowledge of the facts that underlie the legal theory or theories on which liability is predicated." (Matter of Grande v City of New York, 48 AD3d 565 [2nd Dept 2008].) However, "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 AD2d 141 [1st Dept 1990]; see also Bullard v City of New York, 118 AD2d 447 [1st Dept 1986].) "The statute contemplates not only knowledge of the facts, but also how they relate to the legal claim to be asserted." (Carpenter v City of New York, 30 AD3d 594, 595 [2d Dept 2006].)

"[I]n order for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the municipal corporation." (Devivo v Town of Carmel, 68 AD3d 991, 992 [2d Dept 2009]; Matter of Brennan v Metropolitan Transp. Auth., 110 AD3d 437 [1st Dept 2013]; Matter of Casale v City of New York, 95 AD3d 744 [1st Dept 2012]; see also Walker v NYC Transit Auth., 266 AD2d 54 [1st Dept 1999] [police "aided" report did not connect the occurrence with any negligence by respondents].)



In Devivo, the Appellate Division, Second Department ruled that a police accident report and ambulance call report did not provide actual notice of the essential facts because "[t]he reports merely described the response to the scene, the treatment of the injuries at the scene, and the transport of the petitioner to the hospital, but did not describe the accident and made no connection between the petitioner's injuries and any alleged negligence of the appellant." (Devivo, 68 AD3d at 992.) In Matter of Brennan, the Appellate Division, First Department ruled that documents concerning the petitioner's workers' compensation claim were insufficient "since they do not state any facts suggesting that his injuries were due to respondents' negligence or that they are vicariously liable for the conduct of petitioner's employer." (Matter of Brennan, 110 AD3d at 437.) In Matter of Casale, the Appellate Division, First Department ruled that, "although the report provided facts regarding the incident, it failed to connect the incident to any claim against the City." (Matter of Casale, 95 AD at 745.)

Here, in the Court's view, a potentially actionable wrong can be inferred from the incident reports against the NYCTA and MaBSTOA, i.e., that the deployment of the wheelchair ramp onto the street might have been negligent. According to the reports, the bus lane was blocked by other parked vehicles that were issued summonses, and the wheelchair ramp was apparently deployed with the bus parked in the second lane of traffic, four feet away from the curb. The reports state that petitioner's wheelchair "tipped" or "flipped" backwards. It can be reasonably inferred that the deployment of the wheelchair ramp onto the street instead of the curb might have created a steep incline that posed a risk of the wheelchair tipping backwards.



Even if operator error or malfunction of the ramp could not have been readily inferred from the reports, the inquiry does not end there. The record indicates that the bus operator himself witnessed the incident and was involved in the deployment of the wheelchair ramp. Petitioner points out that, in such cases, some courts have ruled that the employee's knowledge and involvement is sufficient to impute actual notice of the essential facts constituting the claim. (Matter of Thomas v City of New York, 118 AD3d 537 [1st Dept 2012]; Matter of Boskin v New York City Transit Auth., 44 AD3d 851 [2d Dept 2007]; Renelique v New York City Hous. Auth., 72 AD3d 595 [1st Dept 2010].)



In Matter of Thomas, the petitioner sought leave to file a late notice of claim, arguing that a police report gave the City of New York actual notice of the essential facts constituting the claim. [*3]The motion court denied leave to amend, stating,



"In the case at bar, the police report indicated that petitioner was driving through an amber signal that had just turned to red when he struck the NYPD vehicle (Pet. Exh. C). The NYPD vehicle had a green light (see id.) The police report does not express any negligence on the part of the NYPD. Therefore, petitioner's allegation that respondent had actual notice of the alleged NYPD negligence because there was a police report that document the accident is not a sufficient showing of actual knowledge."



(Matter of Thomas, Sup Ct, NY County, Mar. 28, 2013, Chan, J., index No. 158494/2012 [McConnell Affirm., Ex 2].) On appeal, the Appellate Division, First Department reversed the lower court, stating, "To begin, respondents had actual knowledge of the pertinent facts constituting the claim-namely, that a New York City Police Department vehicle had been involved in a traffic accident with petitioner's vehicle. Indeed, respondents' agent, a New York City police officer, was driving the police car involved in the accident." (Matter of Thomas, 118 AD3d 537 [emphasis supplied].)



In Matter of Boskin, the Appellate Division, First Department stated,



"Although the record supports that conclusion [no actual knowledge] with respect to the New York City Police Department (hereinafter the NYPD) and the City of New York, the same cannot be said for the New York City Transit Authority (hereinafter NYCTA), whose employees were directly involved in the events leading up to and culminating in the decedent's electrocution and whose reports reflect actual knowledge sufficient to satisfy the statute in this regard."



(Matter of Boskin, 44 AD3d at 852.)

Neither Matter of Thomas nor Matter of Boskin discusses the details of the accident reports that sufficiently conveyed actual knowledge connecting the incident to any potentially actionable wrong. The salient fact in Matter of Thomas and Matter of Boskin is that petitioners sought permission to serve a late notice of claim against parties whose employees were "directly involved" in the incidents. Therefore, the Court finds that the NYCTA and MaBSTOA acquired actual knowledge of the essential facts constituting petitioner's claim, based on the reports.

The Court agrees with the Authorities that petitioner did not demonstrate a reasonable excuse for serving a timely notice of claim. Petitioner failed to submit any medical evidence supporting her assertion that her physical condition or treatment prevented her from timely serving a notice of claim. (Matter of Casale, 95 AD3d at 744.) However, "the absence of a reasonable excuse is not, standing alone, fatal to the application." (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005] [internal citations omitted].) General Municipal Law § 50-e (5) "should not operate as a device to defeat the rights of persons with legitimate claims." (Matter of Annis v New York City Tr. Auth., 108 AD2d 643, 644 [1st Dept 1985].)

Therefore, the petition is granted with respect to the NYCTA and MaBSTOA.

Leave to serve a late notice of claim is denied with respect to the MTA Bus Company. The reports do not appear to have been filed with the MTA Bus Company. The MTA Bus Company is a subsidiary of the MTA, not the NYCTA (see Rampersaud v Metropolitan Transp. Auth. of the State of NY, 73 AD3d 888 [2d Dept 2010].) Therefore, petitioner has not demonstrated that the [*4]MTA Bus Company acquired actual knowledge of the essential facts constituting the claim.[FN2]

Leave to serve a late notice of claim is also denied as to the MTA, because the proposed notice of claim is patently meritless as to the MTA. "It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility." (Delacruz v Metropolitan Transp. Auth., 45 AD3d 482, 483 [1st Dept 2007].)

CONCLUSION

Accordingly, it is hereby

ADJUDGED that the petition is granted in part, and the leave to serve a late notice of claim is granted only as to respondents New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (incorrectly sued herein as Manhattan and Bronx Surface Transportation Operating Authority), and the proposed notice of claim efiled as NYSCEF Doc No. 4 is deemed timely served, nunc pro tunc, upon respondents New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority upon service of a copy of this decision and judgment with notice of entry, and the petition is otherwise denied.



Dated: November 24, 2014



New York, New York



ENTER:



_________/s/



J.S.C.

Footnotes


Footnote 1:Lawrence Heisler, Esq. and Barry McTiernan & Moore LLC both claim to represent the MTA in this action.

Footnote 2:The Court notes that there is no requirement that a notice of claim be served upon a subsidiary of the MTA. (Stampf v Metropolitan Transp. Auth., 57 AD3d 222 [2d Dept 2008], citing Public Authorities Law § 1276[6].) However, Public Authorities Law § 1276 (1), which requires the complaint to allege that a demand or claim(s) were presented at least 30 days prior to suit, still applies.