New York Public Authority Law § 1276 (1) requires a personal injury complaint against the Metropolitan Transportation Authority to include an allegation that at least 30 days have passed since the plaintiff presented a demand to a member of the authority or its designated officer, and the authority has neglected or refused to pay. This statute also applies to the Transportation Authority’s subsidiaries, including the MTA Bus Company. Section 4 of the same statute allows the authority to require a person presenting a claim against the authority to be sworn and answer as to the facts of the claim.
The Supreme Court, New York County, recently considered the standards for presenting the demand and whether a hearing was a prerequisite for filing suit against the authority in the case of Lewis v. MTA Bus Company. The plaintiff was a passenger on a bus when it was involved in a sideswipe collision with another vehicle. The plaintiff filed suit against the MTA Bus Company, the bus driver, and both the owner and the driver of the other vehicle.
The MTA Bus Company moved to dismiss, alleging in part that the plaintiff had not served a demand on it before filing suit and that the plaintiff had failed to appear for a statutory hearing. The defendant alternatively sought an order compelling the plaintiff to appear for a hearing.
The plaintiff’s attorney allegedly sent two copies of a notice of claim via certified mail to the MTA Bus Company at a particular Madison Avenue address. The receipt was allegedly signed two days later.
The bus company alleged that it served the plaintiff with notices to appear for a hearing on dates throughout 2014. The plaintiff did appear on September 5 of that year with his four-year-old child and counsel. The bus company adjuster stated that he told the plaintiff and his attorney that the hearing could not occur because the bus company did not have a day care facility or insurance to cover day care. The plaintiff’s counsel said they waited 30 minutes after the scheduled time and indicated the plaintiff’s willingness to proceed, stating that the child would not be a distraction. The attorney stated that the adjuster refused to hold the hearing. The plaintiff’s attorney alleged that the bus company did not contact him to reschedule.
The plaintiff filed suit in October. The complaint stated that a Notice of Claim had been served on the MTA and that more than 30 days had passed since the claim had been presented without an adjustment or payment. The defendant denied these allegations but admitted that the MTA Bus Company had received a “purported” Notice of Claim, that 30 days had passed since the receipt of that Notice, and that the MTA Bus Company had refused adjustment and payment.
The bus company moved to dismiss, alleging that no pre-suit demand had been served upon it. The bus company argued that the plaintiff sent the notice to an address belonging to the Metropolitan Transportation Authority. The plaintiff argued that he sent the notice to the address on the police report. He also alleged that the bus company admitted to receiving the notice in its answer. The bus company claimed that the Metropolitan Transportation Authority forwarded the notice to the bus company.
The court noted that the notice was not actually sent to the address in the police report. The court then considered whether the bus company could argue that it had not been served with the demand in light of its admissions. The defendant was bound by its admissions and could not assert facts contrary to those admissions. The court then had to determine if the defendant’s assertion that it had not been served the demand was inconsistent with its admission that it had received the notice. The defendant argued that service of the demand is like service of process, and mere receipt did not prove proper service. The court rejected that argument, noting that the Court of Appeals had held that service of a demand under § 1276 (1) was “significantly different” from the service of a summons and complaint. The Public Authorities statute does not prescribe how or where the demand must be made. The court noted there was no appellate case law regarding whether the demand had to be made where the defendant accepts service of process.
The complaint had alleged that the demand had been served on the MTA Bus Company. The defendant denied the allegations but admitted receiving the notice and refusing to pay. The court found that the denial was “not direct,” and it stated that the defendant could not argue it was not validly served the demand while admitting it refused to pay the demand.
The court then considered the hearing issue. The court noted that the Appellate Division, First Department has held that § 1212 (5) of the Public Authorities Law, which has language identical to § 1276 (5), does not make compliance with a demand for a hearing a condition precedent to filing suit. The court therefore found that compliance with the demand for a hearing was not a condition precedent to suit in this case, and it denied the defendant’s motion to dismiss.
The court further found the defendant had not waived its right to hold the hearing, and it granted the motion to compel the plaintiff to appear. The court ordered that the hearing occur on or before May 25, 2016.
Our New York bus accident attorneys know that cases involving public authorities can be complex, with special procedural requirements that are not present in other cases. If you have been injured in a bus accident, we can help you.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Lewis v. MTA Bus Company, March 22, 2016, Supreme Court, New York County
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