Court Rebuffs Subway Victim's Bid To Change Theory of Liability
Lawrence Rogak
Philosopher/ lawyer who wrote the book on New York PIP. No artificial intelligence, ever.
Estate of Mallon v N.Y.C. Transit Authority et al., 2020 NY Slip Op 30187 (Supreme Court, N.Y. County 2020)(Sokoloff, j)
On 26 May 2017, Thomas Lee was struck and killed by a New York City "F" train at the 6th Avenue/W. 57 Street station. His estate administrator filed a statutory Notice of Claim against the Transit Authority [General Municipal Law section 50-e], citing negligent operation of the train as the cause of the incident. After the lawsuit was filed, plaintiff made a Motion to amend the Notice of Claim to add a new theory of liability: negligent design, maintenance and construction of the subject platform by virtue of a too large gap between the edge of the platform and the train.
Plaintiff contended that the allegations concerning the improper maintenance, construction and design of the platform were already sufficiently pleaded in the Notice of Claim and Summons and Complaint, both of which allege that Defendants were negligent in failing to provide reasonable and adequate protection to the claimant and in failing to take the proper precautions to prevent the accident. Defendants argued that the proposed amendment is barred by the one-year-and-90-day Statute of Limitations (Public Authorities Law§ 1212 [2]) .
The court denied plaintiff's request for leave to file an amended notice of claim under General Municipal Law §50-e (6) because "it is an attempt to assert a new theory of liability." GML §50-e (6) permits a notice of claim to be amended at any time, in the discretion of the court, but only to correct good faith, non-prejudicial, technical defects or omissions and not substantive amendments such as the addition of a party or a new theory of liability that cannot be fairly implied from the notice of claim. In this case, the Notice of Claim was limited to the alleged negligent operation of the train and the negligence of the train operator. The court agrees with Defendants that there is nothing in the notice of claim that would put them on notice that Plaintiff would be asserting a theory of liability concerning improper maintenance, construction and design of the subway platform. Nor can the negligent design theory of liability be fairly inferred from the language in Plaintiffs Notice of Claim or Complaint."
"The court has considered Plaintiffs contention that the allegation in the notice of claim that Plaintiff was dragged by the train between the train and the platform gave rise to an inference that the platform was improperly maintained or designed," but given that the facts alleged in Plaintiffs notice of claim are vague regarding the circumstances surrounding decedent's death and the manner in which Defendants were negligent, the allegation of negligent platform design cannot reasonably be inferred from the originally stated allegations and must be viewed as a substantive change in the theory of liability."
The Motion was denied, and plaintiff will have to rely on her initial theory of negligent operation of the train.
Lawrence N. Rogak
Counsel to the NYC Transportation Industry. Outspoken & Proud of it.
4 年Nice to see the judge put some teeth in the GML. In theory judge’s would do the same upon a motion to dismiss for failure to state a claim when no facts are alleged to place defendant in notice of the transactions or occurrences that form the basis of liability. Some dismiss and some just let discovery go forward. I just perfected an appeal on this very issue to the 1st Dept. I guess we shall see what happens.