Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.March 21, 2018130 Uvingston Street Brooklyn, NY 11201 Veronique Hakim President AP-2016-00111 D New York City Transit September 21,2016 Judges of the Court of Appeals State ofNewYork 20 Eagle Street Albany, New York 12207-1095 Re: Contact Chiropractic v. New York City Transit Authority APL-2016-00111 Rule 500.11 Letter Brief Your Honors: Plaintiff-respondent inflates its "implied contract" theory in its letter-brief to this Court dated September 14, 2016, and defendant-appellant NYCTA is constrained to reply. Respondent asserts that a contract, at least one relevant to this No Fault case, may be implied because the underlying injured person (plaintiff's assignor) had paid money for a ride on a NYCTA bus on which she was later injured, and that that payment created some sort of implied contract for safe transportation. Such payment, however, is irrelevant for No Fault purposes because the No Fault law provides protection to persons injured "arising out of the use or operation" of a motor vehicle (see, e.g., N.Y. Ins. Law§§ 5103[a][l]-[4]), without regard to whether those persons had paid any money to be transported by a vehicle; indeed, even some pedestrians are entitled to No Fault benefits if injured by the use or 1 MTA New York City Transit is an agency of the Metropolitan Transportation Authority, State of New York 58-03-6130 12/15 AP-2016-00111 operation of a vehicle (see, e.g., N.Y. Ins. Law §51 02[j], defining "covered person" for No Fault purposes to include certain "pedestrian[s] injured through the use or operation of ... a motor vehicle .... "). Moreover, the very existence of an "implied contract" between a (paying) passenger and NYCTA for transportation that is, among other things, "[]safe," has been rejected by the only appellate authority we have found: Leeds v. Metro. Transp. Auth., 117 Mise 2d 329 (App. Term 1st Dep't 1983). And of course, No Fault benefits are payable even if the owner of the vehicle in which the injured person was riding was not negligent. Respondent posits a fantasy if it is asking this Court to find a theory ofliability, based on contract, that implies a guarantee by NYCTA, in its capacity as a vehicle owner, to provide benefits to a passenger (or pedestrian) injured through the use or operation of that vehicle even if NYCTA's use or operation of that vehicle was in no way negligent or otherwise faulty. That guarantee, in even a limited form, exists here, if at all, only by virtue of statute, and specifically the No Fault law. That being said, we see no relevance to the out of the blue assertions of the respondent that NYCT A "was not created by statute" but at the same time "was created by the [State] Legislature," and that NYCT A "is a for-profit business." Resp. Letter at 17. As to the former, N.Y. Pub. Auth. Law§ 1201[1] begins by stating that"[ a] board, to be known as 'New York City Transit Authority' is 2 AP-2016-00111 hereby created"; as far as we know the Public Authorities Law is a codification of State statutes. And as to the latter, this Court itself has recognized that NYCTA depends on subsidies to operate (see Subway-Surface Supervisors Ass 'n v. New York City Transit Auth., 44 NY2d 101, Ill (1978)). Outlandish or not, these assertions add nothing to respondent's efforts to have this Court reject the reasoned view of the First Department in MN. Dental Diagnostics, P.C. v. New York City Transit Auth., 82 AD3d 409, 410 (1st Dep't 2011) and again in Richard Denise MD. P.C. v. New York City Transit Auth., 96 AD3d 561 (1st Dep't 2012), two decisions that respondent's letter-brief does not even mention. That view should be adopted and the Second Department's order here being appealed from, which takes a contrary view, should be reversed and the underlying action therefore dismissed as time-barred. 3 Respectfully submitted, ~~~ Gabriella Palencia Office ofthe General Counsel New York City Transit Authority 130 Livingston Street Brooklyn, NY 1120 1 Tel. (718) 694-1030 Attorney for Defendant-Appellant New York City Transit Authority • AFFIRMATION OF SERVICE GABRIELLA PALENCIA, pursuant to CPLR 2106(a), affirms: I am an attorney admitted.to practice law in the courts of the State of New York. On September 21, 2016 I served on the plaintiff-respondent the annexed proposed Appellant's Reply in Contact Chiropractic v. New York City Transit Authority (APL-2016-00111) by mailing, via overnight delivery, one set of copies ofthose documents to plaintiff-respondent's attorney at her address of record: Tricia Smith, Esq. Law Offices of Cohen & Jaffe, LLP 2001 Marcus Avenue, Suite W295 Lake Success, New York 11042 Executed and affirmed to be true under to the penalties of perjury at Brooklyn, New York, this 21" day of September, 2016. Gabriella Palencia