### Cassidy v New York City Tr. Auth. 2024 NY Slip Op 32415(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 160320/2022 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.-:..,.....--=-~ - .._,._ -~r ..**~-~** -4**U** .-2:......... -=~--T"-~-.,.<+ -~T :qzs:.m;;...211.

- ... NYSCEF DOC. NO. 46 INDEX NO. 160320/2022 RECEIVED NYSCEF: 07/12/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ Justice ---------------------------------------------------------------------------------X

DAVID CASSIDY Plaintiff
-vNEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AuTIIORITY, DOE NYCTA EMPLOYEE, DOE NYCTA EMPLOYEE Defendants 

### ---------------------------------------------------------------------------------X PART
INDJ:X NO. 160320/2022 MOTIOI\ SEQ. NO. 003

DECISION AND ORDER ON MOTTON 35

The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER For the reasons that follow P\aintiffs motion to renew and reargue this Court's decision denying leave to file a late notice ofclaim is denied. Background OnDecember 5, 2021, at approximately 2:50 a.m. Plaintiffallegedly fell from the subway platform on to the subway tracks at the 50th Street and Broadway subway station in New York County and subsequently was struck by a train (NYSCEF Doc. 14). Pursuant to General Municipal Law §50-e, when seeking to sue a public entity for a tort, the lawrequires that a notice ofclaim is served uponthe public entity within ninety-day (90) days after the claim arises. Here Plaintiffhad approximately until March 5, 2022, to serve a notice of claim. Further since March 5, 2022, ,vas a Saturday, Plaintiffhad approximately until Monday March7, 2022 to timely serve it. Notably, a notice ofclaim is a conditionprecedentto commencing
an action against a public entity (General Municipal Law §50-e).

160320/2022 CASSIDY. DAVID vs. NEWYORK CITY TRANSIT AUTHORITY ET AL Motion No. 003
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### [* 1]NYSCEF DOC. NO. 46 INDEX NO. 160320/2022 RECEIVED NYSCEF: 07/12/2024

Pursuant to General Municipal Law §50-e, when this timcline is missed, individuals with legitimate claims have the remedy to move for an extension oftime to serve a late notice ofclaim within one year and ninety (90) days after the date the claim arose (General Municipal Law §50-e [5]; Pierson v. City ofNnr York, 56 NY2d 950 [19921). llere Plaintiff through counsel, rather thanmoving for an extension oftime to serve a late notice ofclaim, instead without leaveofcourt,
on March 12, 2022 served a late notice ofclaim upon Defendants. 

### By order ofthis this Court in Motion Seq. 2, thatlate notice ofclaim ,vas deemed a nullity. Plaintiffthen commencedthis action
on December 5, 2022 by filing a summons and notice (NYSCEF Doc. 1) and on March 5, 2023 on ihe eve ofthe expiration to file moved by notice ofmotion for an extension of time to serve (NYSCEF Doc. 11). Following an initial appearance on September 13, 2023, this Court adjourned the motion and issued an interim order for Defendants to appear and for Plaintiff to summit additional evidence in support ofthe motion (NYSCEF Doc. 26). Plaintiffdid not submit any such evidence. Thus, the motion was decided solely on the evidence submitted that included an email thread dated March 12, 2022, a notice ofclaim, and a rejection letter from Defendants dated April 11, 2022. The motion was deprived ofany affidavit from Plaintiff, nor any affidavit ofa witness with personal knowledge ofthis incident. Accordingly, by decision and order ofthis Court (NYSCEF Doc. 30), the motion was as denied as Plaintiffs counsel did not submit evidence for this Court to find that Plaintiff had a legitimate claim and that key factors enumerated in General Municipal Law §50-elS

### Iwere met. Plaintiffnow moves by notice ofmotion to rcargue and renewthis Court decision.

16032012022 CASSIDY, DAVID vs. NEWYORK CITV TRANSIT AUTHORITY ET AL Motion No. 003

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### [* 2]NYSCEF DOC. NO. 46

Motion to Reargue INDEX NO. 160320/2022 RECEIVED NYSCEF: 07/12/2024

Pursuantto CPLR2221 a motionto rcargue mustbe based solely uponfact orlaw allegedly overlookedormisapprehended by the court in deciding the priormotion but shall notinclude facts
or evidence not offered on the prior motion (CPLR 222ll_dJ[2l). Furthermore, reargumcnt is not designed to afford the unsuccessful party successive opportunities to rcarguc issues previously decided (William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 [P1Dept 19921). Here, Plaintiffis not incompliance with CPLR 2221 as Plaintiffsubmits new evidence not included in the prior motion. furthermore, while this Courtrecognizes that an allegation that someone was struck by a subway train is alarming and empathizes with Plaintiff, that allegation alone is not sufficient to reasonably infer that Defendants committed a tort or that Plaintiff is automatically entitled to damages, in particularwhen Plaintiffhas beenrepresented by counsel since at least within 90 days from the date ofthe incident on December 5, 2021. Notably,the proposednoticeofclaim previously submitted simply statesthat Plaintiff"fell offsubway platform and was struck by train" (NYSCEF Doc. 14). It does not assert any specific claims against the Defendants, such as any claims sounding in negligence (NYSCEF Doc. 3). Furthermore, the copy ofthe New York City police aided report that was improperly submitted
now states that Plaintiff"intentionally went down on the roadbed". Accordingly, Plainti-fT has not made a showing that based on the papers previously submitted this Court overlooked or misapprehended the facts or existing law.
Motion to Renew Pursuantto CPLR 2221 a motionto renew must be baseduponnew facts not offered in the prior motion that when considered would change the prior determination and must contain

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### [* 3]NYSCEF DOC. NO. 46 INDEX NO. 160320/2022 RECEIVED NYSCEF: 07/12/2024

reasonablejustification for the failure to present such facts on the prior motion (CPLR 2221). In addition, a renewal motion must be timely as an untimely renewal motion does not relate back to the date when the originally timely motion was made (Matter c~f"Rieara v. N. Y Dept. of"Parks & Recreation. 156 AD2d 206 

### 11 st Dept 1 989"]). Upon review, Plaintiff's renewal motion it is untimely as it was filed after the one year and 90 days (see e.g. Asaro v. 

### City of,Vew York, 167 AD2d 130 [1st Dept I990

### J; Gqffredo v. City 

### of New York, 33 ADJd 346 [Ist Dept 2006]). Fwthermorc, even ifdecided on the merits it \vould be denied as Plaintiffhas not made a shmving with a valid excuse that new and additional evidence
was not kno"Wn or otherwise available to Plaintiffthrough counsel (Foley v. Roche, 68 AD2d 558 [1 st Dept 1979]; Phoenix Four, Inc. v. Albertini, 245 AD2d 166 [l5 1 Dept 19971). The Court has also considered Plaintiff's supporting caselaw and finds it is not applicable here. According, the branch ofPlaintiff's motion seeking renewal is denied. 

### It is hereby ORDERED that Plaintiffsmotionto reargue and renewpursuant to CPLR2221 is denied in its entirety; and it is further ORDEREDthatwithin 20 days from the entry ofthis order, Plaintiffshall serve a copy of this order \Vith notice ofentry upon all parties and the Clerk ofthe Court in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for ELectronica!ly Filed Cases (accessible at the "E-Filing" page on the court's website).

7(12{2024

DATE CHECK ONE: ~~~.JS.C

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOS!TION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT
16032012022 CASSIDY, DAVID vs. NEWYORK CITY TRANSIT AUTHORITY ET AL Motion No. 003

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