United States District Court, S.D. New York
Carlos Gonzalez, Gonzalez Law Associates, New York, NY, for Plaintiff Michael George.
Wallace D. Gossett, Alice Charles, Attorneys for the New York City Transit Authority, Brooklyn, NY, for Defendants New York City Transit Authority and Manhattan Bronx Surface Transit Operating Authority.
OPINION & ORDER
DENISE COTE, District Judge.
Plaintiff Michael George ("George") brings this action for compensatory and punitive relief against two defendants - the New York City Transit Authority ("Authority"), and the Manhattan and Bronx Surface Transit Operating Authority ("MaBSTOA"), a subsidiary of the Authority, (collectively "Defendants") - for injuries sustained during a fall on an Authority bus. George brings four federal claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), and one state tort claim of Intentional Infliction of Emotional Distress. The Defendants have moved to dismiss. For the following reasons, the motion to dismiss is granted.
The following facts are uncontroverted or taken in the light most favorable to George. George is an "above the knee amputee" who relies on crutches in order to be mobile. On August 10, 2012, George boarded a MaBSTOA BX 16 bus at the intersection of Nereid Avenue and White Plains Road in the Bronx. After swiping his transit pass, George began to look for seating, and struggled to walk through the aisle in light of the width of the aisle and George's need to use crutches. Before George was able to reach a seat or otherwise secure himself, the bus accelerated rapidly and then abruptly stopped. George fell down, hitting his shoulder and his head. George was taken by ambulance to a hospital, where tests revealed damage to his shoulder and his arm. George underwent surgery on October 22, 2012. He contends that as a result of the injury he is fully incapacitated, and that he is unable to walk on crutches, push himself around in a wheelchair, or write. George also contends that an incident report created by the Authority following the accident incorrectly stated that the bus was not moving when George fell.
George failed to serve a timely notice of claim on Defendants before commencing this action, as is required by N.Y. Gen. Mun. Law § 50-e, and New York Public Authorities Law § 1212. George moved twice in the New York Supreme Court, County of Bronx, for permission to serve a late notice of claim. Both motions were denied on the ground that George had failed to provide a reasonable excuse for the delay in filing the notice of claim. George v. City of New York, et al., No. 260095/13 (Sup.Ct. May 24, 2013); George v. City of New York, et al., No. 260192/12 (Sup.Ct. July 30, 2012).
George instigated this action by filing his complaint on November 8, 2013. The Defendants moved to dismiss on May 23, 2014. The motion to dismiss was fully submitted on June 23.
When deciding a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Grp., PLLC , 570 F.3d 471, 475 (2d Cir. 2009). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). A complaint must do more, however, than offer "naked assertions devoid of further factual enhancement." Id . (citation omitted).
I. State Claim
George brings one state law claim for Intentional Infliction of Emotional Distress. George contends that the Defendants' alleged misconduct and failure to properly investigate the incident were "extreme and outrageous conduct, " and caused George to suffer severe emotional distress. The Defendants argue that the claim should be dismissed because George has failed to comply with New York's notice of claim law.
"[I]n a federal court, state notice-of-claim statutes apply to state-law claims." Hardy v. N.Y.C. Health & Hosp. Corp. , 164 F.3d 789, 793 (2d Cir. 1999); see also Felder v. Casey , 487 U.S. 131, 151 (1988) ("federal courts entertaining state-law claims against... municipalities are obligated to apply the [state] notice-of-claim provision"). "Under New York law, a notice of claim is a condition precedent to bringing personal injury actions against municipal corporations." Hardy , 164 F.3d at 793.
The New York notice of claim statute relevant to this motion is New York General Municipal Law § 50-e ("Section 50-e"), which provides that notice of a claim must be served on a municipal corporation ...