La Marca v. MTA Bus Co.

La Marca v MTA Bus Co. 2024 NY Slip Op 31042(U) March 28, 2024 Supreme Court, New York County Docket Number: Index No. 157473/2023 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.

INDEX NO. 157473/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 03/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Justice ·······-·······---------------·------H------------------*"·-·--------X INDEX NO. 157473/2023 JOIIN LA MARCA MOTION SEQ. NO. _ _ _00_1_ __ Petitioner

- V - DECISION AND ORDER ON MTA BUS COMPANY, NEW YORK CITY TRANSIT MOTION AUTHORITY

Respondents

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The follO\ving e-filed documents, listed by NYSCEF document number (Motion 001) 8, I 0, 11, 12, 13, 14, l 5, I6, 17, l 8, 19, 20 were read on this motion to/for LEAVE TO FILE

For the reasons that follow, the Petition by Petitioner, John La Marca, seeking to serve a

late notice of claim upon Respondents, MTA Bus Company and New Yark City Transit Authority

(collectively Transit) is granted.

Background

The incident giving rise to this application occurred on March 30, 2023, at or near the

intersection of 127th Street and 18th A venue in Queens County. Petitioner alleges that in the course

of his employment as a Department of Transportation (DOT) Assistant Highway Repair employee

he sustained injuries because of Respondents' bus operator's negligence. More specifically,

Petitioner alleges that the Transit bus operator failed to follow Petitioner's directions regarding not

entering a dosed street and in do so struck a roadwork sign that became attached to the bottom of

the bus. Petitioner further alleges that bus operator continued driving the bus while dragging the

sign which struck Petitioner causing him to sustain serious injuries.

15747312023 LA MARCA, JOHN vs. MTA BUS COMPANY ET AL Page 1 of 4 Motion No. 001

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INDEX NO. 157473/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 03/28/2024

Petitioner now timely moves for an extension of time to serve a late notice of claim

pursuant to General Municipal Law §50-e. The Petition also seeks to deem the late notice of claim

previous filed as nunc pro tune, and to compel Respondents to turn over discovery.

Discussion

In deciding to grant or deny a timely application for an extension of time to serve a late

notice of claim upon a public entity, courts must give great ,vcight to whether the public entity

acquired actual notice of the essential facts of the claim within ninety (90) days after the date the

claim arose or a reasonable time thereafter (General Municipal Law §50-e [5]; sec Pierson v. City

of New York, 56 NY2d 950 r1992_1 ).

Other enumerated key factors to consider include whether the movant provides a

reasonable excuse for the delay in not timely serving the prerequisite notice of claim and a showing

that granting the extension will not substantially prejudice the public entity in mounting a defense

(General Municipal Law §50-e [51; see also Dubowy v. City ofNew York, 305 AD2d 320 [1 st Dept

2003];Matter of Porcaro v. City (d'!v'ew York, 20 AD3d 357[1 st Dept 2005]). Yet the presence or

absence of any one factor, except the factor that Respondents had knowledge of the facts of the

claim within ninety (90) days, is not determinative or fatal to these application (see Dubowy,305

AD2d 320; Matter of Porcaro, 20 AD3d 357).

What is paramount and necessary is assuring that public entities can timely investigate

while the evidence is still fresh and available and thus mount defenses against meritorious tort

claims while also assuring that individuals with legitimate claims are able to bring forth such

claims (see Porcaro v City oflv'Y, 20 AD3d 357 [1 st Dept 2005J; Mauer of Orozco v City of NY,

200 AD3d 5 59 [_1 st Dt;pt 2021).

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Here, as to the delay, Petitioner alleges not knowing that serving a notice of claim was

required. \1/hile ignorance of the law generally is not a reasonable excuse, Petitioner nonetheless

submits sufficient evidence for this Court to conclude that Respondents had knowledge of the

essential facts of Petitioner's claim (see Rodriguez v. ,Vew York Cily !lea/th & JloJps. Corp., 78

AD3d 538 [1st Dept 2010]; Dubo11-y 305 A.D.2d 320).

To establish that Respondents had knowledge of the essential facts of Petitioner's claim,

Petitioner among other evidence submits an affidavit of merit and TRANSIT's Supervisor's

Accident/Incident Investigation Report. ln Petitioner's affidavit, he alleges how his injuries

occurred and that TRANSIT immediately aft.er the accident investigated. In addition, TRANSIT's

Supervisor's Accident/Incident Investigation Report includes the date, time, location, specific bus

and operator, and a description of the accident including Petitioner's injuries (see Rao v.

Tri borough Bridge & Tunnel Auth., 223 AD2d 3 74 L1st Dept 1996:1). Although the report contains

different versions of how the accident occurred and who is at fault, Petitioner's affidavit coupled

with TRANSIT's own report is sufficient for the Court to find that Respondents had knowledge of

the essential facts constituting a potential actionable wrong against Petitioner (see e.g. Clarke v.

Veolia Transportation Servs., Inc., 204 AD3d 666 [2d Dept 20221; Alexander v. lVew York City

Transit Auth., 200 AD3d 509 (1st Dept 2021; Matter of Orozco, 200 AD3d 559).

Whether Petitioner can ultimately succeed in a negligence action against Respondents is

immaterial (sec Weiss v. City ofl'v'ew York, 237 AD2d 212 (1st Dept 1997]; Singh v. City of]Vew

York, 165 AD3d 593 [1st Dept 20181; Porcaro 20 AD3d 3 57; Matter of Orozco, 200 AD3d 559).

What is relevant is that Petitioner· s evidence is sufficient for this Court to find that Petitioner has

a potentially legitimate claim and that Respondents had knowledge of the essential facts of the

claim from the date it occurred providing Respondents with the ability to timely investigate and

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mount a defense without prejudice (see Porcaro, 20 AD3d 357; Matter of Orozco, 200 AD3d 559).

Accordingly, this branch of the Petition is granted.

As to the branch of the Petition seeking to have a notice of claim that was filed in July 2023

deemed nunc pro lune, that is denied. The notice of claim was not in compliance with General

Municipal Law §50-e as it was filed after ninety (90) days from the date the claim arose and

Petitioner did not have leave of court to file it, making it a nullity (see General Municipal Law

§50-e; AfcGarty v. City of NY, 44 AD3d 447[l5t Dept 2007]; Wollim v. lv'Y City Ed. of Educ., 8

AD3d 30 11 st Dept 2004]). As to the branch of the Petition moving to compel Respondents to

produce pre-action discovery that is denied as premature.

Accordingly, it is hereby

ORDERED that this Petition seeking to serve a late notice of claim upon Respondents is

granted; it is further

ORDERED that the branch of the Petition seeking to deem a late notice of claim filed

without leave of court nunc pro tune is denied; it is further

ORDERED that that branch of the Petition seeking to compel pre-action discovery from

the Respondents and to hold in abeyance of the resolution of this Petition until the Respondents

have produced their investigation reports is denied; and it is further

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

copy of this order with notice of entry upon all parties.

3/28/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 157473/2023 LA MARCA, JOHN vs. MTA BUS COMPANY ET AL Page 4 of 4 Motion No. 001

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