Ronald E. CALDWELL d/b/a Eye Candy 329 Lafayette Street New York, New York 10012, Plaintiff,
NEW YORK CITY TRANSIT AUTHORITY 130 Livingston Street Brooklyn, New York 11201, Defendant. No. 102451/2011.
This decision has been referenced in a table in the New York Supplement.
Melissa A. Weinberg, Esq., New York, for plaintiff.
Robert J. Paliseno, Esq., Smith Mazure Director Wilkins Young & Yagerman, PC, New York, for New York City Transit Authority.
Decision and Order
MICHAEL D. STALLMAN, J.
In this action, plaintiff alleges that construction in connection with the " Bleecker Street Subway Project" blocked access to the public sidewalk and entrance to plaintiff's business. Plaintiff maintains that the construction caused revenue to drop by 40%, and caused the business to fall behind on the rent.
Defendant moves to dismiss the complaint on the grounds that plaintiff failed to serve a timely notice of claim upon defendant, and that the action is time-barred. Plaintiff cross-moves to strike defendant's fourth and ninth affirmative defenses, which assert these two grounds. Plaintiff also seeks leave to serve a late notice of claim, nunc pro tunc, and seeks an order striking defendant's answer based on defendant's failure to appear for a deposition.
The complaint alleges that plaintiff is engaged in a small retail fashion accessories business called Eye Candy, and that plaintiff's principal place of business is located at 329 Lafayette Street in Manhattan. (Paliseno Affirm., Ex B [Complaint] ¶ 2.) Eye Candy allegedly " specializes in one of a kind contemporary and vintage collect[i]ble fashion accessories." (Paliseno Affirm., Ex A.)
The complaint alleges that, on January 19, 2009, defendant New York City Transit Authority (N.Y.CTA) began blocking access to the public sidewalk and entrance to plaintiff's business, and that the work being conducted by contractors of the NYCTA was related to the Bleecker Street Subway Project. (Complaint ¶¶ 4-5.) According to plaintiff, " [a]lthough the construction and resulting negative impact on Eye Candy began on January 19, 2009, it continued for eleven months and ended on December 1, 2009." ( Id. ¶ 6.) The complaint alleges that, prior to the construction, the NYCTA's representatives stated at community board meetings that access to retail stores on Lafayette Street would never be blocked, and that the walkway for the public would be kept at ten feet wide at all times. ( Id. ¶¶ 8-9.) Plaintiff asserts that these statements were deceptive and misleading, in that the NYCTA allegedly blocked the entrance to his business, and constantly shifted the narrow passageway for pedestrians. ( Id. ¶ 10.) The complaint alleges that, because of the ongoing construction, plaintiff's business " dropped by 40% compared to the previous 11 years of business", and that " [d]amage caused by the [NYCTA] resulted in revenue losses to Eye Candy ... in the amount of $65,594.71." ( Id. ¶¶ 13-14.)
In addition, the complaint alleges that construction damaged Eye Candy's property. The arm of digging machinery allegedly damaged Eye Candy's banner/sign. ( Id. ¶ 16.) Black soot raised by construction allegedly damaged and ruined vintage and antique merchandise. ( Id. ¶ 17.)
It is undisputed that the NYCTA received a notice of claim from plaintiff. A form entitled, " Claim Against NYC Transit for Property Damage", dated February 26, 2010, was apparently signed by plaintiff, and bears a notary's stamp, and purportedly attached to this form was a letter dated February 23, 2010, which begins, " Herewith is notification of claim against NYC Transit for property damage and loss of business damage sustained in the following manner...." (Paliseno Affirm., Ex A.) Both the form and the first page of the February 23, 2010 letter each bear two date/time stamps next to each other:
MTA NYC TRANSIT
2010 APR -8 PM 12:54
CLAIMS PROCESSING UPS
Received by Certified Mail [initials]
MTA NYC TRANSIT
2010 MAR -1 AM 11:55
( See Paliseno Affirm., Ex A.) Defendant acknowledges that it received this notice of claim on March 1, 2010. (Paliseno Affirm. ¶ 4.)
On February 28, 2011, plaintiff commenced this action. By a preliminary conference order dated June 7, 2012, defendant's deposition was scheduled for August 2, 2012. (Paliseno Affirm., Ex D.) By a so-ordered stipulation dated November 8, 2012, defendant's deposition was rescheduled for December 18, 2012. (Weinberg Affirm., Ex A.) It appears from an affidavit of ...