Lapsley-Cockett v. Metropolitan Transit Authority

Oct 20, 2016
451341/13 1750A 1750
Versions:143 A.D.3d 558
38 N.Y.S.3d 896
2016 NY Slip Op 6861

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about December 22, 2015, which, following a framed-issue hearing, granted plaintiffs’ motion to confirm the report of a judicial hearing officer (JHO), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 2, 2014, to the extent it held in abeyance defendants’ motion to dismiss the complaint as against defendant New York City Transit Authority for failure to serve a proper notice of claim, and referred the issue of service of the notice of claim to a JHO to hear and report on certain issues of fact, unanimously dismissed, without costs, as moot.

The court found credible evidence to show that the notice of claim was served, albeit by regular mail, on the Transit Authority within 90 days after the claim arose, and that the Transit Authority requested a 50-h hearing (see General Municipal Law § 50-e [3] [c] [“If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant . . . be examined in regard to it“]). Thus, the “savings clause” was satisfied. Concur — Mazzarelli, J.P., Acosta, Saxe, Moskowitz and Gesmer, JJ.