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.
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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 

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DAVID CASSIDY 

Plaintiff 

-vNEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN 

TRANSIT AuTIIORITY, DOE NYCTA EMPLOYEE, DOE 

NYCT A EMPLOYEE 

Defendants 

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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\aintiff s motion to renew and reargue this Court's decision 

denying leave to file a late notice of claim is denied. 

Background 

On December 5, 2021, at approximately 2:50 a.m. Plaintiff allegedly 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 law requires that a notice of claim is served upon the public entity within ninety-day (90) days 

after the claim arises. Here Plaintiff had approximately until March 5, 2022, to serve a notice of 

claim. Further since March 5, 2022, ,vas a Saturday, Plaintiff had approximately until Monday 

March 7, 2022 to timely serve it. Notably, a notice of claim is a condition precedent to commencing 

an action against a public entity (General Municipal Law §50-e). 

160320/2022 CASSIDY. DAVID vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 003 

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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 of time to serve a late notice of claim 

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 

than moving for an extension of time to serve a late notice of claim, instead without leave of court, 

on March 12, 2022 served a late notice of claim upon Defendants. By order of this this Court in 

Motion Seq. 2, that late notice of claim ,vas deemed a nullity. Plaintiff then commenced this action 

on December 5, 2022 by filing a summons and notice (NYSCEF Doc. 1) and on March 5, 2023 on 

ihe eve of the expiration to file moved by notice of motion 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 of the motion (NYSCEF Doc. 26). Plaintiff did 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 of claim, and a rejection letter from Defendants dated April 

11, 2022. The motion was deprived of any affidavit from Plaintiff, nor any affidavit of a witness 

with personal knowledge of this incident. 

Accordingly, by decision and order of this 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 I were met. 

Plaintiff now moves by notice of motion to rcargue and renew this Court decision. 

16032012022 CASS I DY, DAVID vs. NEW YORK C ITV TRANSIT AUTHORITY ET AL 

Motion No. 003 

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Page 2 of 4 

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NYSCEF DOC. NO. 46 

Motion to Reargue 

INDEX NO. 160320/2022 

RECEIVED NYSCEF: 07/12/2024 

Pursuant to CPLR 2221 a motion to rcargue must be based solely upon fact or law allegedly 

overlooked or misapprehended by the court in deciding the prior motion but shall not include 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 [P1 Dept 19921). 

Here, Plaintiff is not in compliance with CPLR 2221 as Plaintiff submits new evidence not 

included in the prior motion. 

furthermore, while this Court recognizes 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 particular when Plaintiff has been represented by counsel since at least within 90 days 

from the date of the incident on December 5, 2021. 

Notably, the proposed notice of claim previously submitted simply states that Plaintiff "fell 

off subway 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 of the 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 

Pursuant to CPLR 2221 a motion to renew must be based upon new facts not offered in the 

prior motion that when considered would change the prior determination and must contain 

160320/2022 CASSIDY, DAVID vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 003 

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NYSCEF DOC. NO. 46 

INDEX NO. 160320/2022 

RECEIVED NYSCEF: 07/12/2024 

reasonable justification 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. 15 6 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 I 990 J; Gqffredo v. City 

of New York, 33 ADJd 346 [I st Dept 2006]). Fwthermorc, even if decided on the merits it \vould 

be denied as Plaintiff has not made a shmving with a valid excuse that new and additional evidence 

was not kno"Wn or otherwise available to Plaintiff through counsel (Foley v. Roche, 68 AD2d 558 

[1 st Dept 1979]; Phoenix Four, Inc. v. Albertini, 245 AD2d 166 [l51 Dept 19971). The Court has 

also considered Plaintiff's supporting caselaw and finds it is not applicable here. According, the 

branch of Plaintiff's motion seeking renewal is denied. 

It is hereby 

ORDERED that Plaintiffs motion to reargue and renew pursuant to CPLR 2221 is denied 

in its entirety; and it is further 

ORDERED that within 20 days from the entry of this order, Plaintiff shall serve a copy of 

this order \Vith notice of entry upon all parties and the Clerk of the 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 CASSI DY, DAVID vs. NEW YORK CITY TRANS IT AUTHORITY ET AL 

Motion No. 003 

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□ OTHER 

□ REFERENCE 

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