Miller, Eisenman & Kanuck, LLP by: Jonathan M. Kanuck, Esq.
For defendants Wallace D. Gossett, Esq. by: Jamileh-Sofia Diguida
MICHAEL D. STALLMAN, J.
At issue is whether a public authority is entitled to dismissal of an action against it due to the plaintiff's failure to serve a notice of claim form upon it required by law, when plaintiff alleges that correspondence and attachments constituted the notice of claim.
Defendants New York City Transit Authority (NYCTA) and its employee move to pursuant to CPLR 3211 ad CPLR 3212 for an order of dismissal, inter alia, because of plaintiff's failure to serve a notice of claim. (See Pub. Auth. Law §1212; General Municipal Law §50-e.) Plaintiff claims injury from an accident on December 10, 2011. No notice of claim form was ever served. However, plaintiff relies on correspondence (and attached documentation) dated February 14, 2012 and February 23, 2012 from plaintiff's former counsel to the NYCTA Claim Processing Unit in order to "process [plaintiff's] claim for personal injuries as well as PIP benefits." (Kanuck Affirm. Ex. E [Feb. 14, 2012 Letter].) The February 14, 2012 letter states,
"Please be advised that this office has been retained to represent the above named in a claim for injuries sustained as a result of a bus accident which occurred on December 10, 2011. Enclosed please find MTA Information Exchange Form which sets forth the bus information.
Enclosed also find initial narrative report for date of service January 16, 2012 from her treating physician, Dr. Nancy S. Speez of the Sall/Myers
Please provide me with a copy of the Incident report for this accident and any other forms that need to be completed to process her claim for personal injuries as well as a claim for PIP benefits."
(Id.) The letter included the referenced attachments - the MTA Information Exchange Form and the narrative report from plaintiff's treating physician. (Id.)
The February 23, 2012 letter states,
"Enclosed please find completed and duly executed Application for Motor Vehicle No-Fault Benefits, Vehicle in the Household Rider and Claimant Verification of Facts. The claimant is presently treating at Sall/Myers Medical Associates, 4428 Bergenline Avenue, Union City, New Jersey. Enclosed also find initial narrative report for date of service January 16, 2012 ...