This decision has been referenced in a table in the New York Supplement.
Jennifer Redmond, Esq., Redmond Law Office, New York, for plaintiff.
Wallace D. Gossett, Esq. by: Christina Blythe, Esq. Brooklyn, for defendants Metropolitan Transportation Authority and New York City Transit Authority.
MICHAEL D. STALLMAN, J.
Decision and Order
At issue is whether public authorities are entitled to dismissal of an action against them due to the plaintiff's failure to serve notices of claim upon them required by law, when the public authorities erroneously admitted in their answer that documents purporting to be notices of claim were timely received.
Plaintiff Maria Lee alleges that she suffered injuries while boarding a M14D bus on November 20, 2010. According to plaintiff, the bus driver retracted the bus lift for disabled passengers while plaintiff was in the process of boarding the bus, causing her to fall back onto the sidewalk.
By a letter dated December 2, 2010 addressed to defendant New York City Transit Authority (N.Y.CTA), plaintiff's attorney wrote,
" Re: No Fault Application of Maria Louisa Lee
Date of Accident: 11-20-2010
To Whom It May Concern:
Please be advised that I represent Maria Louisa Lee in connection with an accident on a New York City Transit Authority (" NYCTA" ) bus traveling from 11th Street and Avenue C towards 14th Street and 1st Avenue, New York, New York. Enclosed please find the No Fault Application of Maria Louisa Lee. Ms. Lee was injured on a. [ sic ] Kindly assign a claim number for the enclosed application as Ms. Lee has suffered injuries and requires medical care to be covered by No Fault."
(Redmond Affirm., Ex 4.) A Form NF-2 was apparently enclosed with the letter. ( Id. ) By a letter dated December 22, 2010 addressed to the NYCTA, plaintiff's attorney again wrote:
" To Whom It May Concern:
My office represents Maria Louisa Lee in connection with an accident that occurred on a New York City Transit Authority bus traveling from 11th Street and Avenue C towards 14th Street and 1st Avenue on November 20, 2010. My office submitted a No Fault Application for the foregoing accident via certified mail on December 2, 2010, but I have yet to receive a response. I kindly request that a claim number be assigned and passed on to my office as soon as possible as Ms. Lee has suffered injuries and requires medical care to be covered by No Fault. Please contact me ... with the requested claim number."
(Redmond Affirm., Ex 7.)
By a letter dated December 30, 2010 addressed to plaintiff's attorney, the NYCTA's No Fault Unit wrote, " We have received your application for No-Fault Benefits but are unable to consider payment of your claim at this time for the reason(s) stated below: Claim will be delayed pending further investigation." (Redmond Affirm., Ex 8.) Later, in a letter dated January 14, 2011 addressed to plaintiff, Utopia Claim Concepts, Inc. wrote, " An Independent medical evaluation has been scheduled for you at the request of the New York City Transit Authority in reference to the above-captioned No-Fault claim." (Redmond Affirm., Ex 6.)
On February 15, 2011, plaintiff's attorney allegedly sent, via certified mail, a " Personal Injury Claim Form" to the New York City Comptroller. (Redmond Affirm., Ex 1.) Plaintiff does not allege that a similar " Personal Injury Claim Form" was sent to either the NYCTA or defendant Metropolitan Transportation Authority (MTA).
By a letter dated February 18, 2011 (90 days after the alleged incident), the NYCTA's No-Fault Unit again purportedly informed plaintiff's attorney, " NO-FAULT BENEFITS DELAYED PREVIOUSLY PENDING RECEIPT OF VERIFICATION OF FACTS AND VERIFICATION OF VEHICLE IN HOUSEHOLD RIDER Please Refer to previously delay letter dated 12/30/2010." (Redmond Affirm., Ex 9.)
On October 3, 2011, plaintiff commenced this e-filed action. Paragraphs 4 and 7 of the verified complaint identically allege, " That within ninety (90) days after the claim herein sued upon arose, plaintiff (then claimant) caused a Notice of Claim, in writing, sworn to by or on behalf of plaintiff, to be served" upon the MTA and NYCTA,
" which said Notice of Claim set forth the name and post office address of plaintiff, the name of her attorneys, the nature of the claim, the time when, the place where and the manner in which the claim arose and the items of damages or injuries claimed to have been sustained so far as then practicable."
(Blythe Affirm., Ex A; Redmond Affirm., Ex 2.) In paragraph 2 of their undated verified answer, defendants stated,
" Denies, upon information and belief, each and every allegation contained in paragraph(s) of the verified complaint number 4, 5, 7 and 8, except admit(s) that a certain paper purporting to be a notice of claim was received by the office of the defendant(s), METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY; within ninety days of the alleged occurrence herein and that more than 30 days elapsed since receipt thereof and said matter remains unadjusted and unpaid. "
(Blythe Affirm., Ex B; Redmond Affirm., Ex 3 [emphasis added].)
Nearly two years after the alleged subject incident, defendants move to dismiss the action on the ground that no notice of claim was served upon them. Plaintiff opposes their motion and cross-moves for leave to serve late notices of claim upon defendants. Plaintiff's cross motion was apparently made more than two years after the alleged incident.
Defendants argue that the action should be dismissed because plaintiff did not serve timely notices of claim upon them, as required under Public Authorities Law §§ 1212 and 1276. In opposition, plaintiff contends that defendants are estopped from asserting that ground because they admitted in their answer that they received timely notices of claim. Alternatively, plaintiff argues that the No-Fault Form NF2 and accompanying correspondence sent to the NYCTA on December 2, 2010, which the NYCTA received on December 8, 2010, comply with notice of claim requirements. (Opp. Mem. at 7.) In reply, defendants request leave to amend their answer to deny that they received notices of claim from plaintiff. (Blythe Reply Mem. ¶ 19.)
Plaintiff also cross-moves for leave to serve late notices of claim upon defendants. Defendants argue that leave should be denied because the statute of limitations has run.
The Court granted the parties leave to submit supplemental memoranda of law providing case law as to whether an answer admitting to service of a notice of claim can be amended to deny such service after the expiration of the limitations period.
If plaintiff's cross motion for leave to serve late notices of claim were granted, then defendants' motion to dismiss the action due to a lack of a notice of claim would be rendered academic. Therefore, the Court addresses plaintiff's cross motion first. However, plaintiff's cross motion begs the question of whether such leave is necessary. That is, whether the No-Fault form and accompanying correspondence sent from plaintiff's attorney " was substantively and fatally deficient" ( Goodwin v. New York City Hous. Auth., 42 A.D.3d 63, 67 [1st Dept 2007] ) is a threshold issue this Court must consider.
Public Authorities Law §§ 1212(2) and 1276(2), which are applicable to this action, require service of a notice of claim upon The NYCTA and MTA, respectively, within the time limited by, and in compliance with " all of the ...