Opinion
250085/08.
Decided November 25, 2008.
Plaintiff moves seeking an Order granting her leave to amend her Notice of Claim pursuant to General Municipal Law § 50-e(6). Plaintiff avers that due to inadvertence, she misrepresented the date of the instant accident and should be allowed to correct the same. Plaintiff also seeks an Order pursuant to CPLR § 3025(b) granting her leave to amend her complaint to reflect the actual date of occurrence and to plead compliance with Public Authorities Law § 1276(1). Plaintiff avers that insofar as the amendments sought in no way prejudice the defendants, she should be granted leave to amend her complaint. Defendants cross-move seeking an order granting defendant METROPOLITAN TRANSPORTATION AUTHORITY (MTA) summary judgment over plaintiff insofar as the MTA bears no liability for the accident alleged. Defendants also cross-move seeking an Order, pursuant to CPLR § 3211(a)(7), dismissing the instant action against the MTA and defendant MTA BUS COMPANY (MBC) insofar as plaintiff's complaint fails to satisfy the pleading requirements promulgated by Public Authorities Law § 1276(1) and as such the complaint fails to state a cause of action. Defendants oppose plaintiff's motion seeking leave to amend both her Notice of Claim and her complaint on grounds of prejudice. Plaintiff does not oppose defendants motion.
For the reasons that follow hereinafter, plaintiff's motion is granted in part and defendants' cross-motion is hereby granted without opposition and on default.
The instant action is for alleged personal injuries. Plaintiff's complaint alleges that on January 21, 2007, he was injured while a passenger in a vehicle owned by defendants MTA and MBC and operated by an employee of the aforementioned defendants. It is alleged that the vehicle herein was negligently operated and that plaintiff was injured as a result.
In support of the instant motion, plaintiff submits her complaint. As discussed above, the complaint lists the date of occurrence as January 21, 2007. Said complaint is also bereft of any allegation that she served a Notice of Claim upon the defendants, that at least thirty days have elapsed, and that the defendants have refused or neglected to adjust the claim.
Plaintiff submits a Notice of Claim dated March 31, 2007 and stamped received by defendant MBC on April 3, 2007. Said Notice of Claim lists the date of the accident herein as January 21, 2007.
Plaintiff submits a letter she received from MBC dated August 17, 2007. Said letter lists the date of the accident herein as February 21, 2007. Plaintiff submits a denial of claim form dated August 28, 2007, wherein MBC lists the date of the accident herein as February 21, 2007. Plaintiff submits a verification of treatment form dated May 14, 2007, wherein MBC lists the date of the accident herein as February 21, 2007. Plaintiff submits a medical report dated May 9, 2007 and sent to MBC wherein the date of the accident herein is listed as February 21, 2007.
In support of its cross-motion and in opposition to the plaintiff's motion, defendants submit documents already submitted by the plaintiff, namely the Notice of Claim and the complaint. Defendants submit their answer and demand for a bill of particulars.
Defendants submit an affidavit from Marlo Polese (Polese), head counsel for MBC. Polese states that the vehicle involved in plaintiff's accident was under the exclusive ownership, control and operation of MBC. The employee operating the vehicle was employed by MBC and not MTA. MTA played no role in the operation, control, or maintenance of the vehicle herein. MTA's function is limited to financing and planning.
Defendants submit an accident report from the operator of the bus herein. The same describes the accident involving the plaintiff and lists the date of the accident as February 21, 2007.
Notice of Claim
The purpose of the statutory notice-of-claim requirement is to provide a public corporation with an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while the information is still readily available. O'Brien v. City of Syracuse, 54 NY2d 353 (1981); Adkins v. City of New York, 43 NY2d 346 (1977); Teresta v. City of New York, 304 NY2d 440 (1952); Cruz v. New York City Housing Authority, 269 AD2d 108 (1st Dept. 2000); Simms v. City of New York, 207 AD2d 480 (2nd Dept. 1994). GML § 50-e exists to provide a municipality with "safeguards devised by law to protect municipalities against fraudulent and stale claims for injuries to persons or property." Mills v. County of Monroe, 59 NY2d 310-311, 307 (1983).
Pursuant to General Municipal Law (GML) § 50-e , the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality. GML § 50-e(a) reads In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.
The Notice of Claim requirement is also mandated for any actions against Public Authorities such as the Metropolitan Transportation Authority. Public Authorities Law § 1276(2), not only promulgates a Notice of Claim requirements for suits against the same, but also incorporates by reference GML § 50-e, preconditioning suit with compliance of the same.
Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a nullity. Van der Lugt v. City of New York, 36 AD2d 915 (1st Dept. 1971); Mack v. City of New York, 265 AD2d 308 (2nd Dept. 1999); Kokkinos v. Dormitory Auth. of New York, 238 AD2d 550 (2nd Dept. 1997); Chikara v. City of New York, 10 AD2d 862 (2nd Dept 1960).
When a party fails to timely file a notice of claim, GML § 50-e(5) allows a late filing, with leave of Court, in cases were such notices are required. GML § 50-e(5) reads
In determining whether to grant [a plaintiff] the extension, the court shall consider, in particular, whether the [defendant] public corporation or its attorney, or its insurance carrier, acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one, or within a reasonable time thereafter. The court shall consider all other relevant facts and circumstances including: whether the plaintiff was an infant or mentally or physically incapacitated . . . and whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits.
Thus, the Court in its discretion may allow a late filing after a consideration of the above mentioned factors, which include, as cited above, a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose, or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. Jusino v. New York City Housing Authority 255 AD2d 41 (1st Dept. 1999); Gerzel v. City of New York, 117 AD2d 549 (1st Dept. 1986); Matter of Morrison v. New York City Health and Hospitals Corp, 244 AD2d 487 (2nd Dept. 1997); Perrault v. New York City Transit Auth., 234 AD2d 464 (2nd Dept. 1996); Matter of D'Anjou v. New York City Health and Hospitals Corp., 196 AD2d 818, (2nd Dept. 1993).
With regard to a reasonable excuse for the delay. Sarti v. City of New York, 268 AD2d 285 (1st Dept. 2000); Aviles v. New York City Health and Hospitals Corp., 172 AD2d 237 (1st Dept. 1991); Brandes v. City of New York, 270 AD2d 346 (2nd Dept. 2000); Matter of Resto v. City of New York, 240 AD2d 499 (2nd Dept. 1997). The absence of a reasonable excuse is a significant factor to be considered by the Court when determining whether to grant plaintiff leave to serve a late notice of claim Aviles v. New York City Health and Hospitals Corp., 172 AD2d 237 (1st Dept. 1991); Perkins v. New York City Health and Hospitals Corp., 167 AD2d 150 (1st Dept. 1990). Law office has been deemed an inexcusable excuse for failure to file a timely notice of claim. Seif v. City of New York, 218 AD2d 595 (1st Dept. 1995); Bullard v City of New York, 118 AD2d 447 (1st Dept 1986); Perez v. City of New York, 250 AD2d 688 (2nd Dept. 1998); Matter of Deegan v. City of New York, 227 AD2d 620 (2nd Dept. 1996).
With regard to notice of the claim, GML § 50-e (5) provides, in pertinent part, that the court shall consider, "in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one (90 days) or within a reasonable time thereafter." It is well settled that plaintiffs have the burden of establishing this element. Washington v. City of New York, 72 NY2d 881 (1988). In the context of GML § 50-e, "actual knowledge" means that the defendant must have acquired knowledge of the essential facts forming the basis of the negligence claim, not simply knowledge of the occurrence of an accident. Kim v. City of New York, 256 AD2d 83 (1st Dept. 1998); Chattergoon v. New York City Housing Auth., 161 AD2d 141 (1st Dept. 1990); Bullard v City of New York, 118 AD2d 447 (1st Dept 1986); Mondert v. New York City Transit Auth., 224 AD2d 500 (2nd Dept. 1996); Matter of Sica v. Board of Education of the City of New York, 226 AD2d 542 (2nd Dept. 1996); Matter of Morrison v. New York City Health and Hospitals Corp, 244 AD2d 487 (2nd Dept. 1997).
With regard to any prejudice caused by an untimely filing, it bears mention that the primary purpose of the notice-of-claim requirement is to permit the municipality to conduct a prompt investigation of the facts and circumstances out of which a claim arose while information is still fresh and readily available. O'Brien v. City of Syracuse, 54 NY2d 353 (1981); Adkins v. City of New York, 43 NY2d 346 (1977); Teresta v. City of New York, 304 NY2d 440 (1952); Cruz v. New York City Housing Authority, 269 AD2d 108 (1st Dept. 2000); Simms v. City of New York, 207 AD2d 480 (2nd Dept. 1994). A delay creates a very real danger that changed conditions "would prevent an accurate reconstruction of the circumstances existing at the time the accident occurred." Vitale v. City of New York, 205 AD2d 636, 636 (2d Dept. 1994), quoting, Perry v. City of New York, 133 AD2d 692 (2nd Dept. 1987). Similarly, a delay can impact a defendant's ability to "locate and examine witnesses while their memories of the facts were still fresh." Gilliam v. City of New York, 250 AD2d 681, 680 (2nd Dept. 1998); Kim v. City of New York, 256 AD2d 83 (1st Dept. 1998).
GML § 50-i states in relevant part:
Public Authorities Law § 1276(2), sets the statute of limitations for any suit founded on Tort to one year from accrual.
No action or special proceeding shall be prosecuted or maintained against a city . . . unless . . . (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based [.]
Once the statute of limitations has expired, it is well-settled law that the court is without jurisdiction to extend the time to commence the action in order to permit plaintiff to comply with the notice of claim requirement of GML § 50-e. As the Court of Appeals held in Pierson v. City of New York
In this case the time for filing a notice without court approval has expired and no application for an extension was made prior to the expiration of the Statute of Limitations. Thus the court lacked the power to authorize late filing of the notice. Pierson v. City of New York, 56 NY2d 950, 955-56 (1982). Thus, an application for the service of a late notice of claim must be made within the applicable statute of limitations. See also, 423 South Salina Street, Inc. v. City of Syracuse, 68 NY2d 474 (1986); Gaynor v. Town of Hoosick, 58 NY2d 699 (1982); Frank v. City of New York, 240 AD2d 198, 658 NYS2d 293 (1st Dept. 1997).
With regard to amending an already filed Notice of claim, GML § 50-e(6) also reads Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.
Thus, generally a mistake made in good faith, within a Notice of Claim, can be corrected absent a showing that a defendant will be prejudiced thereby. Mayer v. DuPont Associates, Inc., 80 AD2d 799 (1st Dept. 1981); Sanchez v. City of New York, 25 AD2d 731 (1st Dept. 1966); Gatewood v. Poughkeepsie Housing Authority, 28 AD3d 515 (2nd Dept. 2006); Seaita v. City of Yonkers, 292 AD2d 456 (2nd Dept. 2002); Tucker v. Long Island Railroad Company, 128 AD2d 517 (2nd Dept. 1987); Cruz v. City of New York, 95 AD2d 790 (2nd Dept. 1983). However, it is clear that the types of amendments allowed are those of a non-substantive nature, such as the date of the occurrence or the location of the accident. Id. Substantive amendments to a Notice of Claim, such as the addition of a party or the addition of anew theory of liability are not allowed pursuant to GML § 50-e(6). Moore v. Melesky , 14 AD3d 757 (3rd Dept. 2005); Harrington v. City of New York , 6 AD3d 662 (2nd Dept. 2004); Zwecker v. Clinch, 279 AD2d 572 (2nd Dept. 2001).
GML § 50-i(1) states
Public Authorities Law promulgates the very same requirement as GML § 50-i(1).
No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death.
Thus, a plaintiff is required to plead, within his complaint that he has served a Notice of Claim upon the defendant, that at least thirty days have elapsed, and that the defendant has refused or neglected to adjust the claim. Davidson v. Bronx Municipal Hospital, 64 NY2d 59 (1984); Cochrane v. Town of Gates, 18 AD2d 1048 (4th Dept. 1963). The failure to plead what GML 50-i generally requires mandates dismissal of the complaint. Melito v. Canastota Central School System, 192 AD2d 754 (3rd Dept. 1993); Pretino v. Wolbern, 84 AD2d 830 2nd Dept. 1981). However, in the absence of prejudice, plaintiff should be granted leave to amend his complaint to plead compliance with GML § 50-i. Fizgibbon v. County of Nassau, 112 AD2d 266 (2nd Dept. 1985); Tucker v. Long Island Railroad Company, 128 AD2d 517 (2nd Dept. 1987); Snyder v. Board of Education of Ramapo Central School District No. 2, Town of Ramapo, Rockland County, 42 AD2d 912 (2nd Dept. 1973).
Amendment of Pleadings
CPLR § 1003 prescribes the procedure for adding additional parties to an existing action and it states Nonjoinder of a party who should be joined under section 1001 is a ground for dismissal of an action without prejudice unless the court allows the action to proceed without that party under the provisions of that section. Misjoinder of parties is not a ground for dismissal of an action. Parties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it. Parties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just. The court may order any claim against a party severed and proceeded with separately.
Thus, new parties may be added at anytime with leave of court and without leave of court within 20 days of the service of the original summons or prior to the expiration of the pleading responding to the summons. An amended pleading seeking to add additional parties served without leave of court when leave is required is a nullity, constitutes a jurisdictional defect, and warrants dismissal. Yonker v. Amol Motorcycles, Inc., 161 AD2d 638 (2nd Dept. 1990); Camacho v. New York City Transit Authority, 115 AD2d 691 (2nd Dept. 1985). The exception to this rule is when the person added absent leave of court waives jurisdiction by engaging in conduct constituting waiver. Id.
CPLR § 1009 governs the circumstances under which a plaintiff can amend his complaint to assert a direct cause of action against a third-party. CPLR § 1009 reads
Within twenty days after service of the answer to the third-party complaint upon plaintiff's attorney, the plaintiff may amend his complaint without leave of court to assert against the third-party defendant any claim plaintiff has against the third-party defendant.
Thus, a plaintiff may amend his complaint to assert direct claims a third-party defendant within 20 days after service of the third-party defendant's answer upon the plaintiff.
CPLR § 3025 prescribes the law with regard to the amendment of pleadings. CPLR § 3025(a) and (b) state (a) Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. (b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
Thus, a party may amend its pleading without leave to assert claims against an existing party provided the amended pleading is served within 20 days after the service of the pleading sought to be amended, prior to the expiration of the time period prescribed for responding to the pleading sought to be amended or within 20 days after the service of the responsive pleading. Failure to seek leave of court to amend a pleading adding claims against an existing party, when such leave is required, is a nullity requiring dismissal of the amended pleading. Nikolic v. Federation Employment and Guidance Service, Inc., 18 AD3d 522 (2nd Dept. 2005); Peterkin v. City of New York, 293 AD2d 244 (2nd Dept. 2002).
Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay. McMcaskey, Davies and Associates, Inc., 59 NY2d 755 (1983); Fahey v. County of Ontario, 44 NY2d 934 (1978). Delay in seeking leave to amend a pleading is not in it of itself a barrier to judicial leave to amend, instead, "[i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine." Edenwald Contracting Co. v. City of New York, 60 NY2d 957, 958 (1983). A failure to adequately explain the delay in seeking to amend the pleadings, if coupled with prejudice, may serve as a basis for the denial of movant's motion to amend. Morgan v. Prospect park Associates Holdings, L.P., 251 AD2d 306 (2nd Dept 1998). A motion seeking leave to amend a pleading must be denied if the amendment will result in actual prejudice or surprise. Bonanni v. Staright Arrow Publishers, 133 AD2d 585 (1st Dept. 1987). An amendment which requires supplemental discovery thereby resulting in prejudicial delay should be denied. Alpert v. Shea Gould Climenko Casey, 160 AD2d 67 (1st Dept. 1990). In Bonanni, the Court denied plaintiff's petition to amend the complaint, when plaintiff sought to add a new theory of liability, four years after the action was initially commenced, which had not been mentioned in the original complaint. Bonanni v. Staright Arrow Publishers, 133 AD2d 585 (1st Dept. 1987). The Court concluded that the theory originally pled and the theory for which leave to amend was sought required different factual proofs. Id. In Alpert, the Court concluded that the original complaint did not sufficiently give notice of the facts regarding the amendment and cause of action. Alpert v. Shea Gould Climenko Casey, 160 AD2d 67 (1st Dept. 1990). As such, the Court concluded that, the absence of notice did not enable the defendant to prepare a defense. Id. The Court deemed that plaintiff's three year delay in seeking to amend its pleadings was inexcusable. Id.
Even if there is no prejudice resulting from the proposed amendment, before leave is granted, it must be demonstrated that the proposed amendment has merit. Thomas Crimmins Contracting Co., Inc. v. City of New York, 74 NY2d 166 (1989)(Defendant's petition to amend its answer to assert, an affirmative defense, was denied when the Court found that the defense even if asserted would not be meritorious); Herrick v. Second Cuthouse, Ltd., t/a Forbidden Forest, 64 NY2d 692 (1984) (Court concluded that defendant was rightfully allowed to amend its answer when the amendment would not prejudice plaintiff and where the amendment was found to have merit); Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003); Rachmani Corporation v. 19th Street Associates, 214 AD2d 358 (1st Dept. 1995); Leszczynski v. Kelly McGlynn, 281 AD2d 519 (2nd Dept. 2001); McKiernan v. Mckiernan, 207 AD2d 825 (2nd Dept. 1994). When seeking to amend the complaint the moving party must make some evidentiary showing that a proposed amendment has merit. Curran v. Auto Lab Serv. Ctr., 280 AD2d 636 (2nd Dept. 2001). The motion to amend will be granted "unless the insufficiency or lack of merit is clear and free from doubt." Noanjo Clothing v. L M Kids Fashion, 207 AD2d 436, 437 (2nd Dept. 1994). Thus, it has been held that the Court should examine the proposed amendment and determine whether said amendment is legally sufficient or otherwise has merit. Weider v. Skala, 168 AD2d 355 (1st Dept. 1990) (Court held that plaintiff's proposed amendment to include a tortious interference claim was legally insufficient and was not meritorious. Consequently, the motion seeking leave to amend the complaint to assert that cause of action was denied). In discussing the relevant inquiry as it pertains to motions seeking leave to amend pleadings the Court stated
. . . this Court has held that leave to amend a complaint is not granted upon mere request without a proper showing. Rather, in determining whether to grant leave to amend, a court must examine the underlying merit of the causes of action asserted therein, since to do otherwise, would be wasteful of judicial resources.
Id. at 76-77. On this issue, the Court of Appeals has stated that
Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore, properly denied.
Thomas Crimmins Contracting Co., Inc. v. City of New York, 74 NY2d 166, 170 (1989).
Thus, in determining whether to grant the proposed amendment, the Court can look at whether or not the proposed amendment is sufficient on its face to establish a viable cause of action or whether the evidence submitted supports a conclusion that the claim has merit. Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003); Rachmani Corporation v. 19th Street Associates, 214 AD2d 358 (1st Dept. 1995); Ortega v. Bisogno Meyerson , 2 AD3d 607 (2nd Dept. 2003). In Mansell, an employment discrimination case, plaintiff sought to amend her complaint to assert a claim that she was discriminated against by virtue of her disability. Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003). The Court concluded that based on the documentary evidence, the claim of discrimination had no merit and therefore, plaintiff's application to amend was properly denied. Id. The Court also concluded that the proposed pleading was bereft of any allegations to support a claim of discrimination. Id. In Leszczynski, the Court denied plaintiff's leave to amend the pleadings after finding that the action was barred by the statute of limitations and plaintiff's pleadings were devoid of merit. Leszczynski v. Kelly McGlynn, 281 AD2d 519 (2nd Dept. 2001). The Court, in acknowledging that at times an action can be asserted even if the statute of limitations has run by virtue of the "relation-back doctrine," found that plaintiff had the burden of establishing the applicability of said doctrine, which in that case did not apply. Id.
It is well settled that the standard applied when reviewing the merits of a proposed pleading is much less exacting than the standard employed in determining a motion for summary judgment. Thompson v. cooper, 24 AD3d 203 (1st Dept. 2005); Aetna Casualty and Surety Company v. LFO Construction, 207 AD2d 274 (1st Dept. 1994); Baskin and Sears, P.C. v. Lyons, 188 AD2d 307 (1st Dept. 1992). As such, the court in determining the merit of a proposed pleading should first evaluate whether the pleading itself, based on the facts alleged, is legally sufficient to state a cause of action. Daniels v. Empire-Orr, Inc., 151 AD2d 370 (1st Dept. 1989). if the facts pled are legally incongruent the proposed amendment must fail. Id. Second, assuming the pleading is patently sufficient and meritorious, the court should then test the merit of the pleading by looking at the support for the same. Id; Bast Hatfield, Inc. v. Schalmont Central School District , 37 AD3d 987 (3rd Dept. 2007). The merit of a proposed pleading shall be sustained unless the opponent of the same establishes that the facts alleged and relied upon by the proponent are unreliable or insufficient. Baskin and Sears, P.C. v. Lyons, 188 AD2d 307 (1st Dept. 1992).
Since the court must examine the proposed pleading for patent sufficiency, it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion. Hoisting Machinery Company v. Elderfields Reservation, Inc., 195 A.D. 893 (1st Dept. 1921); Loehner v. Simons, 224 AD2d 591 (2nd Dept. 1996); Branch v, Abraham and Strauss Department Store, 220 AD2d 474 (2nd Dept. 1995); Goldner Trucking Corp. v. Stoll Packing Corp., 12 A.D. 639 (2nd Dept. 1960).
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). With regards leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phllips, for example, found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR § 4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial . (Internal citations omitted).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Metropolitan Transportation Authority
Public Authorities Law (PAL) § 1266(5), which describes the Metropolitan Transit Authority's (MTA) special powers, reads
The authority may acquire, hold, own, lease, establish, construct, effectuate, operate, maintain, renovate, improve, extend or repair any transportation facilities through, and cause any one or more of its powers, duties, functions or activities to be exercised or performed by, one or more wholly owned subsidiary corporations of the authority or by New York city transit authority or any of its subsidiary corporations in the case of transit facilities and may transfer to or from any such corporations any moneys, real property or other property for any of the purposes of this title upon such terms and conditions as shall be agreed to and subject to such payment or repayment obligations as are required by law or by any agreement to which any of the affected entities is subject. The directors or members of each such subsidiary corporation of the authority corporation shall be the same persons holding the offices of members of the authority. Each such subsidiary corporation of the authority and any of its property, functions and activities shall have all of the privileges, immunities, tax exemptions and other exemptions of the authority and of the authority's property, functions and activities. Each such subsidiary corporation shall be subject to the restrictions and limitations to which the authority may be subject. Each such subsidiary corporation of the authority shall be subject to suit in accordance with section twelve hundred seventy-six of this title. The employees of any such subsidiary corporation, except those who are also employees of the authority, shall not be deemed employees of the authority.
Because as per the statute, the MTA delegate the operation, control and maintenance of its facilities to its subsidiaries, the MTA's functions are limited to financing and planning and said duties do not include the operation, maintenance, and control of any facility. Cusick v. Lutheran Medical Center, 105 AD2d 681 (2nd Dept. 1984). As such, the MTA is not liable for the torts committed by one of its subsidiaries when the same arose from the operation of the subsidiary. Noonan v. Long Island Railroad, 158 AD2d 392 (1st Dept.. 1990); Montez v. Metropolitan Transportation Authority, 43 AD2d 224 (1st Dept. 1974); Wenthen v. Metropolitan Transportation Authority, 95 AD2d 852 (2nd Dept. 1983); Bujosa v. Metropolitan Transportation Authority, 44 AD2d 849 (2nd Dept. 1974).
Motion to Dismiss for Failure to State a Cause of Action
When deciding a motion to dismiss a plaintiff's complaint pursuant to CPLR § 3211(a)(7), the Court must take all the allegations within the complaint as true. Sokoloffv. Harriman Estates Development Corp., 96 NY2d 409 (2001); Cron v. Hargro Fabrics, Inc., 91 NY2d 362 (1998). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff. Id. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint. Id. If an affidavit is submitted for that purpose, it shall be given its most favorable intendment. Id. The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory. Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409 (2001). In fact, the law mandates that the Court's inquiry not be limited to deciding whether plaintiff has pled the cause of action intended. Leon v. Martinez, 84 NY2d 83 (1994). Instead, the Court must determine whether the plaintiff has pled any cognizable cause of action. Id.
When, however, extrinsic evidence is considered in deciding a motion to dismiss for failure to state a cause of action, "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Id. at 88. As Judge Cook in Guggenheimer v. Ginzburg, stated
Initially, the sole criterion is whether the pleading states a cause of action, and from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion to dismiss will fail***When evidentiary material is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not fact at all and unless it can be said that no significant dispute exists regarding it again dismissal should not eventuate.
Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977).
Thus, on a motion to dismiss, pursuant to CPLR § 3211(a)(7), where it is alleged that plaintiff has failed to state a cause of action, the Court must first examine the pleadings themselves and determine if from the four corners of the pleadings, they facially state any cause of action. Id. If it appears that the plaintiff has no cognizable cause of action either because plaintiff has failed to articulate facts amounting to a cause of action or because the law bars such an action based on the factual circumstances wherein the cause action arose, the Court must dismiss the cause of action. Id.
The Court can consider evidentiary material submitted by the defendant and may use the same to assess the viability of a complaint. Id. As such,
When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.
Id. at 275. Stated differently, if the evidentiary material submitted indicates that the facts pled in the complaint are not facts at all and no dispute regarding the same exists, the complaint should be dismissed. Id.; Mayerhoff v. Timenides, 269 AD2d 369 (2nd Dept. 2000); Adams v. O'Connor, 245 AD2d 537 (2nd Dept. 1997). Accordingly, when the allegations in the complaint are flatly contradicted by the documentary evidence submitted by defendant, the court shall not accord the same any truth. Biondi v. Beekman Hill House Apartment Corporation, 257 AD2d 76 (1st Dept. 1999); Klierbert v. McKoan, 228 AD2d 232 (1st Dept. 1996); Blackgold Realty Corp. v. Milne, 119 AD2d 512 (1st Dept. 1986).
CPLR § 3013, requires that
[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.
As such, a complaint must contain facts essential to give notice of a claim or defense. DiMauro v. Metropolitan Suburban Bus Authority, 105 AD2d 236 (2nd Dept. 1984). Vague and conclusory allegations will not suffice. Id.; Fowler v. American Lawyer Media, Inc., 306 AD2d 113 (1st Dept. 2003); Shariff v. Murray , 33 AD3d 688 (2nd Dept. 2006); Stoianoff v. Gahona, 248 AD2d 525 (2nd Dept. 1998); Washington Avenue Associates, Inc. v. Euclid Equipment, Inc., 229 AD2d 486 (2nd Dept. 1996). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted. Schuckman Realty, Inc. v. Marine Midland Bank, N.A., 244 AD2d 400 (2nd Dept. 1997); O'Riordan v. Suffolk Chapter, Local No. 852, Civil Service Employees Association, Inc., 95 AD2d 800 (2nd Dept. 1983).
It is well settled that much like a primary complaint, when a third-party complaint fails to state a cause of action, the same must be dismissed pursuant to CPLR § 3211(a)(7). Mayer v. Sanders, 264 AD2d 827 (2nd Dept. 1999); De Luca v. Itek Corporation, 59 AD2d 885 (2nd Dept. 1977); Melino v. Tougher Heating Plumbing Co., Inc., 23 AD2d 616 (3rd Dept. 1965); Resnick v. City of New York, 286 A.D. 861 (2nd Dept. 1955); Bennet v. Lambert, 82 NYS2d 111 (Supreme Court, Kings County 1948); Green v. Hudson Shoring Co., Inc., 191 Misc. 297 (Supreme Court, Kings County). In Mayer, the Court dismissed the third-party complaint seeking contribution and indemnity, when the same merely stated conclusory, rather than particular facts regarding third-party defendant's negligence. Mayer v. Sanders, 264 AD2d 827 (2nd Dept. 1999). In De Luca, the court, finding that third-party plaintiff had not pled sufficient facts as required by CPLR § 3013, dismissed the third-party complaint for failure to state a cause of action. De Luca v. Itek Corporation, 59 AD2d 885 (2nd Dept. 1977). In that case, the causes of action for indemnity and contribution consisted of conclusory allegations that if plaintiff recovers in the main action, any damages were damages due thereby stemmed from third-party defendant's negligence. De Luca v. Itek Corporation, 59 AD2d 885 (2nd Dept. 1977). The court held that absent more, there were no facts indicating how third-party defendant was negligent or that it breached a duty to the plaintiff. The court in Resnik, confronted with similar language, dismissed the third-party complaint. Resnick v. City of New York, 286 A.D. 861 (2nd Dept. 1955). In Melino, the court held that the failure of the third-party plaintiff to plead the existence of a contract, calling for indemnity, warranted dismissal of the third-party claim for contractual indemnification. Melino v. Tougher Heating Plumbing Co., Inc., 23 AD2d 616 (3rd Dept. 1965).
Discussion
Plaintiff's motion seeking leave to amend her Notice of Claim is hereby granted. It is well settled that as per GML § 50-e(6), a mistake made in good faith, within a Notice of Claim, can be corrected absent a showing that a defendant will be prejudiced thereby. However, it is clear that the types of amendments allowed are those of a non-substantive nature, such as the date of the occurrence or the location of the accident. Substantive amendments to a Notice of Claim, such as the addition of a party or the addition of a new theory of liability are not allowed pursuant to GML § 50-e(6). In this case, plaintiff seeks to amend her Notice of Claim to correct a discrepancy with regard to the date of occurrence. Plaintiff's Notice of Claim lists the date of occurrence as January 21, 2007, but plaintiff claims that accident occurred on February 21, 2007. Plaintiff attributes the discrepancy to inadvertence. Insofar as defendants' only opposition to the instant application is a conclusory allegation of prejudice, the application herein is granted. Not only do defendants fail to articulate and particularize the actual prejudice alleged, but the documents submitted by plaintiff belies any claim of prejudice. Plaintiff submits several documents either authored or received by defendant MBC, which list the correct date of the accident herein, February 21, 2007. Additional, MBC's own accident report, authored on the date of the accident herein lists the date of the accident herein as February 21, 2007. Thus, it is clear that defendants were aware of the correct accident date as early as February 21, 2007 and well before the instant motion was made. Plaintiff's application seeking leave to amend her Notice of Claim is hereby granted to the limited extent of amending the same to reflect February 21, 2007 as the date of the accident herein.
Plaintiff's application seeking leave to amend her complaint to reflect the correct date of the accident herein and to plead compliance with PAL § 276(1) is hereby denied. Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay. Even if there is no prejudice resulting from the proposed amendment, before leave is granted, it must be demonstrated that the proposed amendment has merit. Since the court must examine the proposed pleading for patent sufficiency, it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion. Pursuant to § PAL § 1276(1) and GML § 50-i, a plaintiff suing a public authority or a municipality is required to plead, within his complaint that he has served a Notice of Claim upon the defendant, that at least thirty days have elapsed, and that the defendant has refused or neglected to adjust the claim. The failure to plead what GML 50-i generally requires mandates dismissal of the complaint. However, in the absence of prejudice, plaintiff should be granted leave to amend his complaint to plead compliance with PAL § 1276(1) and GML § 50-i. In this case, as discussed above, defendant fails to demonstrate actual prejudice with respect to the amendments sought insofar as they fail to particularize and demonstrate actual prejudice and more importantly, insofar as the documents submitted by plaintiff and by defendants belie any claim of prejudice. With regard to the amendment sought with regard to the date of occurrence, as discussed above the documents submitted evince that the date of the accident herein was February 21, 2007 and as such that amendment has merit. With regard to plaintiff's motion seeking leave to amend her complaint to allege compliance with PAL § 1276(1), the very Notice of Claim submitted by the all parties coupled with the fact the action herein has not settled, evinces that plaintiff has complied with PAL § 1276(1). Thus, the amendment sought in that regard has merit. However, insofar as plaintiff has failed to annex the proposed complaint, the court must deny this portion of plaintiff's motion.
Defendants cross-motion seeking summary judgment in MTA's favor and against plaintiff is hereby granted. It is well settled that because as per the statute, the MTA may delegate the operation, control and maintenance of its facilities to its subsidiaries, the MTA's functions are limited to financing and planning and said duties do not include the operation, maintenance, and control of any facility. As such, the MTA is not liable for the torts committed by one of its subsidiaries when the same arose from the operation of the subsidiary. In this case, summary judgement is not only warranted in favor of the MTA based on the law relieving them of liability for the acts of their subsidiaries, but because defendants submit evidence which evinces that MTA had no responsibility for the vehicle or employee herein. Defendants submit an affidavit from Porlese, head counsel fort MBC, wherein he states that the vehicle involved in plaintiff's accident was under the exclusive ownership, control and operation of MBC. The employee operating the vehicle was employed by MBC and not MTA. MTA played no role in the operation, control, or maintenance of the vehicle herein. MTA's function is limited to financing and planning. Accordingly, defendants establish prima facie entitlement to summary judgment. Insofar as plaintiff does not oppose the instant cross-motion no questions of fact preclude summary judgment in MTA's favor.
Defendants motion seeking dismissal of plaintiff's complaint insofar as the same fails to state a cause of action as against them is hereby granted. When deciding a motion to dismiss a plaintiff's complaint pursuant to CPLR § 3211(a)(7), the Court must take all the allegations within the complaint as true. All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff. The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory. In fact, the law mandates that the Court's inquiry not be limited to deciding whether plaintiff has pled the cause of action intended. Instead, the Court must determine whether the plaintiff has pled any cognizable cause of action. Id. As discussed above, pursuant to § PAL § 1276(1) and GML § 50-i, a plaintiff suing a public authority or a municipality is required to plead, within his complaint that he has served a Notice of Claim upon the defendant, that at least thirty days have elapsed, and that the defendant has refused or neglected to adjust the claim. The failure to plead what GML 50-i generally requires mandates dismissal of the complaint for failure to state a cause of action. A review of plaintiff's complaint reveals that the same does not pled compliance with PAL § 1276(1). Insofar as plaintiff's motion seeking leave to amend her complaint was denied, her complaint, in failing to plead compliance with PAL § 1276(1), must be dismissed as to MCB the only remaining defendant which is a public authority. It is hereby
ORDERED that plaintiff be granted leave to amend her Notice of Claim to the limited extent of alleging that the accident herein occurred on February 21, 2007. It is further ORDERED that plaintiff's complaint as against the MTA be hereby dismissed with prejudice. It is further
ORDERED that plaintiff's complaint against MBC be hereby dismissed. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.