The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM--DECISION and ORDER
On January 31, 2011, plaintiff Sonia Javed ("plaintiff" or "Javed")
filed this action against Shuang Zhang ("Zhang"), the County of
Tompkins ("the County"), the Town of Ithaca ("Ithaca"),*fn1
and Tomkins County Consolidated Area Transit, Inc. ("TCAT")
(collectively "defendants"). Dkt. No. 1 ("Complaint"). Plaintiff, a
citizen of Pakistan, invokes 28 U.S.C. § 1332 for purposes of subject
matter jurisdiction and brings negligence claims against each
defendant arising from injuries she suffered on November 4, 2009, when
she was struck by a vehicle driven by Zhang while crossing a street in
The County and TCAT have each filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. Nos. 7, 9. After failing to respond before the deadline and being granted an extension of time, plaintiff responded to the County's and TCAT's motions to dismiss. Dkt. Nos. 14, 15. The County and TCAT replied. Dkt. Nos. 19, 21. Zhang has filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Dkt. No. 18. Plaintiff has not responded to this motion. The motions were considered on submit.
The following pertinent facts, taken from the complaint, are assumed true for purposes of these motions to dismiss. At approximately 6:13 p.m. on November 4, 2009, Javed was on the sidewalk on the east side of Pine Tree Road in Ithaca. At the particular section of Pine Tree Road where the incident occurred the roadway is three lanes wide. One lane runs north, one runs south, and a turning lane divides these two lanes of travel. There is a marked pedestrian crosswalk across all three lanes, but there are no traffic control devices. There is a TCAT bus stop near the crosswalk on both sides of the road, but there is no separate lane to allow a bus to pull off the roadway when picking up or dropping off passengers. On either side of the road, just south of the crosswalk, are entrances to shopping centers.
While Javed stood on the east side of Pine Tree Road, a TCAT bus approached from the south and stopped at the bus stop located on the west side of the road. As plaintiff crossed from the east side of the street to the west side of the street, she was struck by a 1999 Honda sedan owned and operated by Zhang, who was driving north on Pine Tree Road.*fn2 Plaintiff rolled onto the hood of the car and ultimately landed on the pavement. Plaintiff sustained numerous physical injuries, which required multiple surgeries, and suffers from emotional and mental distress as a result of the incident. On January 9, 2010, plaintiff served a timely notice of claim on the County and Ithaca.*fn3
On January 28, 2011, a hearing was held pursuant to General Municipal Law section 50-h at the County's request.
A. Motion to Dismiss Standard
To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1950 (2009). Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of her claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
When deciding a motion to dismiss, a district court may consider documents attached to the complaint as exhibits or incorporated by reference therein. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Even if a document is not incorporated by reference, a court may nevertheless consider it "where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint." Id. (internal quotation marks omitted). However, even if the document is integral, "it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document." Id. (internal quotation marks omitted).
The notice of claim that plaintiff served on the County is incorporated by reference in the complaint. See Complaint, ¶ 25. The police report-which Javed and defendants cite in support of their arguments-was attached to the notice of claim. The authenticity and accuracy of these documents are undisputed, and they will thus be considered. Similarly, the seven photographs attached to plaintiff's opposition memorandum of law depict the scene of the incident, which plaintiff describes in detail in her complaint. As there is no question regarding the accuracy of these photos, they will also be considered.
B. The County's Motion to Dismiss
The County argues that the negligence claim against it must be dismissed because Javed's notice of claim was insufficient and, in the alternative, the complaint fails to state a claim upon which relief can be granted.
The County asserts that plaintiff's notice of claim was inadequate because it was contradicted by her subsequent testimony at the section 50-h hearing. Plaintiff argues that the notice of claim satisfied New York ...