Delisser v. N.Y.C. Transit Auth.

211 A.D.3d 907

181 N.Y.S.3d 280

Wayne DELISSER, respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, appellant, et al., defendant.

2020-05663

Index No. 509510/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 21, 2022

December 21, 2022

Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellant.

Georgaklis & Mallas, PLLC, Brooklyn, NY (Gregory S. Lombardi of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., PAUL WOOTEN, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated March 6, 2020. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2) and for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On February 8, 2014, the plaintiff allegedly sustained personal injuries when he alighted from a bus on Utica Avenue between Avenue I and Avenue J in Kings County. According to the plaintiff, as soon as he stepped down onto the roadway surface with his right foot, he encountered a hump in the roadway that caused him to twist his foot and stumble.

The plaintiff, who served a notice of claim upon the defendant New York City Transit Authority (hereinafter the NYCTA), commenced this personal injury action against, among others, the NYCTA. The NYCTA moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2) and for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court, inter alia, denied those branches of the NYCTA's motion. The NYCTA appeals.

"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v. City of New York, 95 N.Y.2d 389, 392, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ; see General Municipal Law § 50–e ; Ruark v. City of Glen Cove, 164 A.D.3d 1492, 1494, 84 N.Y.S.3d 205 ; Davis v. City of New York, 153 A.D.3d 658, 660, 61 N.Y.S.3d 551 ).

General Municipal Law § 50–e(2) requires that the notice of claim set forth, among other things, "the nature of the claim" and "the time when, the place where and the manner in which the claim arose" (see Brown v. City of New York, 95 N.Y.2d at 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ; Davis v. City of New York, 153 A.D.3d at 660, 61 N.Y.S.3d 551 ). The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to " ‘locate the place, fix the time, and understand the nature of the accident’ " ( Puello v. New York City Hous. Auth., 150 A.D.3d 1164, 1164, 55 N.Y.S.3d 355, quoting Canelos v. City of New York, 37 A.D.3d 637, 638, 830 N.Y.S.2d 334 ). Claims of roadway or sidewalk defects must be set forth with great specificity because of their transitory nature (see Mack v. City of New York, 286 A.D.2d 756, 730 N.Y.S.2d 730 ; Ryan v. County of Nassau, 271 A.D.2d 428, 705 N.Y.S.2d 398 ; Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401 ). " ‘Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case’ " ( Vallejo–Bayas v. New York City Tr. Auth., 103 A.D.3d 881, 882, 962 N.Y.S.2d 203, quoting Ingle v. New York City Tr. Auth., 7 A.D.3d 574, 575, 777 N.Y.S.2d 154 ; see Ruark v. City of Glen Cove, 164 A.D.3d at 1494, 84 N.Y.S.3d 205 ). A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient, in addition to examining the "four corners" of the notice of claim, may consider the testimony provided during an examination pursuant to General Municipal Law § 50–h, as well as any other evidence properly before the court ( D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891, 893, 613 N.Y.S.2d 849, 636 N.E.2d 1382 [internal quotation marks omitted]; see Parker–Cherry v. New York City Hous. Auth., 62 A.D.3d 845, 846, 878 N.Y.S.2d 790 ; see also Davis v. City of New York, 153 A.D.3d at 660, 61 N.Y.S.3d 551 ).

Here, contrary to the NYCTA's contention, the information contained in the notice of claim, supplemented by other evidence submitted by the NYCTA in support of its motion, identified the accident site with sufficient particularity (see Ruark v. City of Glen Cove, 164 A.D.3d at 1494, 84 N.Y.S.3d 205 ; Lipani v. Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248–1249, 61 N.Y.S.3d 582 ). Moreover, the NYCTA's lengthy delay in moving to dismiss the complaint on the ground that the notice of claim was defective undermined the NYCTA's contention that it was prejudiced in not having the specific information sooner (see Hudson v. New York City Tr. Auth., 19 A.D.3d 648, 798 N.Y.S.2d 105 ). Accordingly, the Supreme Court properly denied that branch of the NYCTA's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2).

The Supreme Court also properly denied that branch of the NYCTA's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "A common...