Luka v. New York City Transit Authority

OPINION OF THE COURT Bloom, J. On January 22, 1981, plaintiff Joseph Luka was injured while endeavoring to board a bus operated by Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). Within the 90-day period limited by law (Public Authorities Law, § 1212, subd 2; General Municipal Law, § 50-e), he served a notice of claim on New York City [324] Transit Authority (NYCTA). NYCTA forwarded the notice to MABSTOA, which gave the claim a number and noticed the oral examination of Joseph Luka. NYCTA and MABSTOA are separate and distinct bodies corporate (Public Authorities Law, § 1201, subd 1; § 1203-a, subd 2). Prior to the hearing, plaintiffs and MABSTOA entered into a stipulation which amended the time of the accident. The stipulation, which was prepared by the attorney for plaintiffs, listed NYCTA as the body against which the claim was made. New York City Transit Authority was stricken from the title of the stipulation and MABSTOA substituted. In the endeavor to still the obvious doubt in the mind of plaintiffs’ counsel, he included in the stipulation, a reference to the “New York City Transit Authority a/k/a Manhattan and Bronx Surface Transit Operating Authority”. During this period MABSTOA served notice requiring plaintiff Joseph Luka to submit to oral examination on his claim. The notice listed MABSTOA in the title as the body against which claim was made. Despite these circumstances which should have alerted plaintiffs to the fact that there was some question with respect to the proper defendant, plaintiffs served a summons and complaint naming NYCTA as defendant. Issue was joined on or about February 19,1982 by the service of NYCTA’s answer. In that answer, NYCTA denied the allegations of ownership, operation and control of the bus in question. This was some two months prior to the expiration of the time limited by law for the commencement of the action (Public Authorities Law, § 1212, subd 2). Despite the obvious flagging of the situation by the notice requiring plaintiff Joseph Luka to submit to oral examination in which MABSTOA was named as the body corporate against which claim was made; the stipulation, with its handwritten change in the title, from New York City Transit Authority to MABSTOA, and the denials of ownership, operation and control contained in NYCTA’s answer, plaintiffs did nothing until after they had deposed a representative of NYCTA. Then, in January, 1983, two years after the accident, they moved to serve an amended notice of claim and an amended summons and complaint, nunc pro tunc, substituting MABSTOA as defendant in the [325] place and stead of NYCTA. In response, NYCTA cross-moved for summary judgment on the ground that it did not own, operate or control the bus in question. Special Term denied plaintiffs’ motion and granted defendant’s cross motion for summary judgment. We affirm. While the court has discretionary power to permit service of a late notice of claim, application therefor must be made prior to the expiration of the period fixed by law within which action must be brought (Pierson v City of New York, 56 NY2d 950). That period had expired in April, 1982 (Public Authorities Law, § 1212, subd 2), long before plaintiffs made their motion. Plaintiffs contend, as does our dissenting brother, that they were misled by the actions of MABSTOA and, accordingly, it should be equitably estopped from denying lack of notice of claim (Bender v New York City Health & Hosps. Corp., 38 NY2d 662). However, in the context of the situation here presented, the doctrine of equitable estoppel applies only “where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice” (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668, supra). It is, however, a doctrine of limited application and does not diminish the vitality of the rule that the doctrine of estoppel is not applicable to agencies of the State acting in their governmental capacity (Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93, n 1). It is to be invoked sparingly and only under exceptional circumstances. MABSTOA and NYCTA sought to make clear on a number of occasions that MABSTOA and not NYCTA was the proper defendant. MABSTOA altered the title of a stipulation, it used the name of the proper defendant in the notice of examination, and NYCTA denied ownership, operation or control of the bus in question. Plaintiffs’ endeavor to peg an estoppel on their own reference in a stipulation to “New York City Transit Authority a/k/a Manhattan and Bronx Surface Transit Operating Authority” is much too thin a reed to establish that MABSTOA acted wrongfully or negligently, thus inducing reliance by a person entitled to rely. To the degree that plaintiff could [326] be informed that MABSTOA was the proper defendant without so stating in precise language, both NYCTA and MABSTOA conveyed that information. Indeed, each of them went beyond what normally would be expected in an adversary proceeding. While the dismissal of what may be a meritorious claim may be a harsh result, it is a conclusion foreordained by statute. The remedy, if any there is to be, lies with the Legislature and not with the courts. Accordingly, the order and judgment (one paper) of the Supreme Court, New York County (Eugene R. Wolin, J.), entered July 7,1983, denying plaintiffs’ motion for leave to file a late notice of claim and summons and complaint, nunc pro tunc, upon Manhattan and Bronx Surface Transit Operating Authority and granting defendants’ cross motion for summary judgment should be affirmed, without costs.