Cassidy v. New York City Tr. Auth.

Cassidy v New York City Tr. Auth. 2024 NY Slip Op 32415(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 160320/2022 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Justice ---------------------------------------------------------------------------------X INDJ:X NO. 160320/2022 DAVID CASSIDY MOTIOI\ SEQ. NO. 003 Plaintiff

-v- NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN DECISION AND ORDER ON TRANSIT AuTIIORITY, DOE NYCTA EMPLOYEE, DOE MOTTON NYCT A EMPLOYEE

Defendants

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER

For the reasons that follow P\aintiff s motion to renew and reargue this Court's decision

denying leave to file a late notice of claim is denied.

Background

On December 5, 2021, at approximately 2:50 a.m. Plaintiff allegedly fell from the subway

platform on to the subway tracks at the 50 th Street and Broadway subway station in New York

County and subsequently was struck by a train (NYSCEF Doc. 14).

Pursuant to General Municipal Law §50-e, when seeking to sue a public entity for a tort,

the law requires that a notice of claim is served upon the public entity within ninety-day (90) days

after the claim arises. Here Plaintiff had approximately until March 5, 2022, to serve a notice of

claim. Further since March 5, 2022, ,vas a Saturday, Plaintiff had approximately until Monday

March 7, 2022 to timely serve it. Notably, a notice of claim is a condition precedent to commencing

an action against a public entity (General Municipal Law §50-e).

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INDEX NO. 160320/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/12/2024

Pursuant to General Municipal Law §50-e, when this timcline is missed, individuals with

legitimate claims have the remedy to move for an extension of time to serve a late notice of claim

within one year and ninety (90) days after the date the claim arose (General Municipal Law §50-e

[5]; Pierson v. City ofNnr York, 56 NY2d 950 [19921). llere Plaintiff through counsel, rather

than moving for an extension of time to serve a late notice of claim, instead without leave of court,

on March 12, 2022 served a late notice of claim upon Defendants. By order of this this Court in

Motion Seq. 2, that late notice of claim ,vas deemed a nullity. Plaintiff then commenced this action

on December 5, 2022 by filing a summons and notice (NYSCEF Doc. 1) and on March 5, 2023 on

ihe eve of the expiration to file moved by notice of motion for an extension of time to serve

(NYSCEF Doc. 11 ).

Following an initial appearance on September 13, 2023, this Court adjourned the motion

and issued an interim order for Defendants to appear and for Plaintiff to summit additional

evidence in support of the motion (NYSCEF Doc. 26). Plaintiff did not submit any such evidence.

Thus, the motion was decided solely on the evidence submitted that included an email

thread dated March 12, 2022, a notice of claim, and a rejection letter from Defendants dated April

11, 2022. The motion was deprived of any affidavit from Plaintiff, nor any affidavit of a witness

with personal knowledge of this incident.

Accordingly, by decision and order of this Court (NYSCEF Doc. 30), the motion was as

denied as Plaintiffs counsel did not submit evidence for this Court to find that Plaintiff had a

legitimate claim and that key factors enumerated in General Municipal Law §50-elS I were met.

Plaintiff now moves by notice of motion to rcargue and renew this Court decision.

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INDEX NO. 160320/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/12/2024

INDEX NO. 160320/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/12/2024

reasonable justification for the failure to present such facts on the prior motion (CPLR 2221). In

addition, a renewal motion must be timely as an untimely renewal motion does not relate back to

the date when the originally timely motion was made (Matter c~f"Rieara v. N. Y Dept. of" Parks &

Recreation. 15 6 AD2d 206 11 st Dept 1989"]).

Upon review, Plaintiff's renewal motion it is untimely as it was filed after the one year

and 90 days (see e.g. Asaro v. City of,Vew York, 167 AD2d 130 [1st Dept I 990 J; Gqffredo v. City

of New York, 33 ADJd 346 [I st Dept 2006]). Fwthermorc, even if decided on the merits it \vould

be denied as Plaintiff has not made a shmving with a valid excuse that new and additional evidence

was not kno"Wn or otherwise available to Plaintiff through counsel (Foley v. Roche, 68 AD2d 558

[1 st Dept 1979]; Phoenix Four, Inc. v. Albertini, 245 AD2d 166 [l51 Dept 19971). The Court has

also considered Plaintiff's supporting caselaw and finds it is not applicable here. According, the

branch of Plaintiff's motion seeking renewal is denied.

It is hereby

ORDERED that Plaintiffs motion to reargue and renew pursuant to CPLR 2221 is denied

in its entirety; and it is further

ORDERED that within 20 days from the entry of this order, Plaintiff shall serve a copy of

this order \Vith notice of entry upon all parties and the Clerk of the Court in accordance with the

procedures set forth in the Protocol on Courthouse and County Clerk Procedures for

ELectronica!ly Filed Cases (accessible at the "E-Filing" page on the court's website).

7(12{2024 DATE ~~~.JS.C

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOS!TION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

16032012022 CASSI DY, DAVID vs. NEW YORK CITY TRANS IT AUTHORITY ET AL Page 4 of 4 Motion No. 003

Footnotes

[2] of 4 [* 2] Motion to Reargue Pursuant to CPLR 2221 a motion to rcargue must be based solely upon fact or law allegedly overlooked or misapprehended by the court in deciding the prior motion but shall not include facts or evidence not offered on the prior motion (CPLR 222ll_dJ[2l). Furthermore, reargumcnt is not designed to afford the unsuccessful party successive opportunities to rcarguc issues previously decided (William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 [P1 Dept 19921). Here, Plaintiff is not in compliance with CPLR 2221 as Plaintiff submits new evidence not included in the prior motion. furthermore, while this Court recognizes that an allegation that someone was struck by a subway train is alarming and empathizes with Plaintiff, that allegation alone is not sufficient to reasonably infer that Defendants committed a tort or that Plaintiff is automatically entitled to damages, in particular when Plaintiff has been represented by counsel since at least within 90 days from the date of the incident on December 5, 2021. Notably, the proposed notice of claim previously submitted simply states that Plaintiff "fell off subway platform and was struck by train" (NYSCEF Doc. 14). It does not assert any specific claims against the Defendants, such as any claims sounding in negligence (NYSCEF Doc. 3). Furthermore, the copy of the New York City police aided report that was improperly submitted now states that Plaintiff "intentionally went down on the roadbed". Accordingly, Plainti-fT has not made a showing that based on the papers previously submitted this Court overlooked or misapprehended the facts or existing law. Motion to Renew Pursuant to CPLR 2221 a motion to renew must be based upon new facts not offered in the prior motion that when considered would change the prior determination and must contain 160320/2022 CASSIDY, DAVID vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 3 of 4 Motion No. 003 [* 3] 3 of 4

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