Supreme Court, Nassau County, July 9, 2018

Mark D. Hoffer, General Counsel, The Long Island Railroad, Jamaica (Kevin McCaffrey of counsel), for defendants.

Derek Smith Law Group PLLC, New York City (Paul Liggieri of counsel), for plaintiffs.

The motion by the defendants, the Metropolitan Transportation Authority and the Long Island Railroad (LIRR), for an order dismissing the amended complaint pursuant to CPLR 3211 (a) (1) and (7), is granted pursuant to CPLR 3211 (a) (7) to the extent that the third cause of action for intentional infliction of emotional distress is dismissed as this cause of action does not seek to vindicate a public right and the plaintiffs failed to timely file a notice of claim (see Seifullah v City of New York, 161 AD3d 1206 [2018]; Kassapian v City of New York, 155 AD3d 851 [2017]).

This is a purported class action on behalf of the passengers of the LIRR who suffered during the so-called "summer of hell" in 2017, as well as in January 2018, as a consequence of, inter alia, extensive infrastructure problems which needed emergency repair and construction work (see e.g. Emma G. Fitzsimmons & Patrick McGeehan, Penn Station Commuters are Plotting a Plan B for 'Summer of Hell', NY Times, June 20, 2017 at A21). The primary legal basis for the plaintiffs' first and second causes sounding in breach of contract and negligence is Transportation Law § 96, which requires a "corporation . . . or common carrier performing a service . . . [to] furnish . . . service and facilities [that] shall be safe and adequate . . . in all respects." The complaint and plaintiffs' legal arguments appear to track as its model an article published in 1984 by the Fordham Urban Law Journal (Maura E. O'Sullivan, Availability of a New York Class Action for Railroad Commuters: David v Goliath, 12 Fordham Urb LJ 841 [1984]).

The defendants' motion at bar to dismiss is based upon the legal doctrine of sovereign immunity and the well-settled statutory requirement that the plaintiffs are required to file and serve notices of claim pursuant to the Public Authorities Law as a prerequisite before any monies can be recovered based on theories of tort or contract. The plaintiffs admit that they did not file any notice of claim, nor did they cross-move for permission to file a late notice of claim. They rely instead on the slim reed of the appellate court-created "public interest exception" to the notice of claim requirement (see Mills v County of Monroe, {**60 Misc 3d at 856}59 NY2d 307, 312 [1983]). This court agrees with the plaintiffs' contention that since the purported class action case at bar seeks to vindicate a public interest—that the defendants maintain safe and adequate facilities and service in accordance with the Transportation Law—and that the disposition of that claim will directly affect the rights of the public, this action falls within the public interest exception to the notice of claim requirement (see generally 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 493 [1986]).

The defendants' argument regarding sovereign immunity may be renewed in a motion for summary judgment (see e.g. Abraham v City of New York, 39 AD3d 21 [2007]; compare Sydlowski v Town of Bethlehem, 162 AD3d 1188 [3d Dept 2018]).