| Matter of Besedina v New York City Tr. Auth. |
| 2008 NY Slip Op 00685 [47 AD3d 924] |
| January 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Maria Besedina, Respondent, v New YorkCity Transit Authority et al., Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for appellants City of New York and New York City PoliceDepartment. Seeger Weiss, LLP, New York, N.Y. (Christopher A. Seeger, Marc S. Albert, and DavidBuchanan of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve latenotices of claim, the New York City Transit Authority and the Metropolitan TransportationAuthority appeal, and the City of New York and the New York City Police Departmentseparately appeal, from an order of the Supreme Court, Queens County (Elliot, J.), enteredDecember 18, 2006, which granted the petition.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the petition which was for leave to serve a late notice of claim on the City of New Yorkand the New York City Police Department, and substituting therefor a provision denying thatbranch of the petition; as so modified, the order is affirmed, with one bill of costs payable by thepetitioner to the City of New York and the New York City Police Department, and one bill ofcosts payable to the petitioner by the New York City Transit Authority and the MetropolitanTransportation Authority.
The petitioner allegedly was raped twice on the subway platform of the 21st Street subway[*2]station in Queens by an assailant who had followed her off a"G" train. The petitioner sought leave to serve late notices of claim on the appellantsapproximately 11 months after she was raped. Her proposed claim against the appellants NewYork City Transit Authority and the Metropolitan Transportation Authority (hereinafter theTransit appellants) is premised largely on the alleged failure of the employees of the Transitappellants to come to her aid. The petitioner's proposed claim against the appellants City of NewYork and New York City Police Department (hereinafter the City appellants) is premised on,inter alia, the alleged failure of the City appellants to staff an "omega booth," i.e., a policeanti-terrorism post, in the 21st Street station.
Although raised for the first time on appeal, the argument of the City appellants that thepetitioner's claim against them is patently without merit raises an issue of law that appears on theface of the record, the determination of which could not have been avoided if raised in theSupreme Court. Accordingly, it is appropriate to consider that argument on the appeal (seeMatter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475, 476 [1998]).
The City appellants correctly argue that they may be potentially liable to an individual as aresult of a failure to provide police protection only if there is an allegation of the existence of a"special relationship" (Abraham v Cityof New York, 39 AD3d 21, 25 [2007]; Laratro v City of New York, 8 NY3d 79, 83 [2006]; see Etienne v New York City Police Dept.,37 AD3d 647 [2007]). The petitioner's claim based on the failure to staff the "omegabooth" would not give rise to any liability on the part of the City appellants, and is patentlywithout merit. While the merits of a claim ordinarily are not considered on a motion for leave toserve a late notice of claim, where the proposed claim is patently without merit, leave to serve alate notice of claim should be denied (see Matter of Catherine G. v County of Essex, 3 NY3d 175, 179[2004]; see also Matter of State FarmFire & Cas. Co. v Village of Bronxville, 24 AD3d 453 [2005]; Matter of Brown v New York City Hous.Auth., 39 AD3d 744 [2007]).
The Transit appellants did not raise any issue with regard to the merits of the petitioner'sclaim against them, and the Supreme Court did not improvidently exercise its discretion ingranting that branch of the petition which was for leave to serve a late notice of claim on theseappellants under the circumstances presented. Mastro, J.P., Santucci, Covello and Angiolillo, JJ.,concur.