From Casetext: Smarter Legal Research

Gloria Castro-Castillo v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 2010
78 A.D.3d 406 (N.Y. App. Div. 2010)

Opinion

No. 3521.

November 4, 2010.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered July 15, 2009, which granted defendants' motion to dismiss the complaint for failure to serve a notice of claim upon the proper party, unanimously affirmed, without costs.

Susan R. Nudelman, Dix Hills, for appellant.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.

Before: Concur — Mazzarelli, J.P., Friedman, Catterson, DeGrasse and Manzanet-Daniels, JJ.


Plaintiff was allegedly injured in a slip and fall on a slushy subway staircase. Although she served a timely notice of claim on the City and the Metropolitan Transportation Authority (MTA), she failed to serve such a notice upon the proper party, defendant New York City Transit Authority (NYCTA), which operates the subway system. It is well settled that service of the requisite notice of claim must be made upon the correct party ( Williams v City of New York, 74 AD3d 548), and a plaintiff may not avoid dismissal in that regard by invoking the savings provision of General Municipal Law § 50-e (3) (c) ( Scantlebury v New York City Health Hosps. Corp., 4 NY3d 606; Diaz v New York City Health Hosps. Corp., 56 AD3d 317, lv denied 12 NY3d 712). The notice of claim that was served listed only the City and the MTA. Even though these papers were subsequently transmitted by those defendants to NYCTA for a hearing under General Municipal Law § 50-h, that cannot be considered appropriate service ( see Cottiers v New York City Health Hosps. Corp., 303 AD2d 187).

We have considered plaintiffs remaining arguments and find them unavailing.


Summaries of

Gloria Castro-Castillo v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 2010
78 A.D.3d 406 (N.Y. App. Div. 2010)
Case details for

Gloria Castro-Castillo v. City of New York

Case Details

Full title:GLORIA CASTRO-CASTILLO, Appellant, v. CITY OF NEW YORK et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 4, 2010

Citations

78 A.D.3d 406 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 7803
910 N.Y.S.2d 68

Citing Cases

SunTrust Mortg., Inc. v. Kingston

Failure to comply with a condition precedent of Gen. Mun. Law §50-i results in dismissal of the complaint as…

Khan v. Metro. Transp. Auth.

MTA Bus is a subsidiary of the MTA (see Rampersaud v Metropolitan Transp. Auth. of State of N.Y., 73 A.D.3d…