| Luke v Metropolitan Transp. Auth. |
| 2011 NY Slip Op 02360 [82 AD3d 1055] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Ralph Luke, Respondent, v Metropolitan TransportationAuthority et al., Appellants, et al., Defendant. |
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In an action to recover damages for personal injuries, the defendants MetropolitanTransportation Authority and New York City Transit Authority appeal from an order of theSupreme Court, Kings County (R. Miller, J.), dated January 28, 2009, which denied their motionfor summary judgment dismissing the complaint insofar as asserted against them with leave torenew upon the completion of discovery.
Ordered that the order is affirmed, without costs or disbursements.
On December 24, 2001, the plaintiff allegedly was injured at the intersection of EmpireBoulevard and Rogers Avenue in Brooklyn, while attempting to board a bus operated by thedefendants Metropolitan Transportation Authority (hereinafter the MTA) and the New York CityTransit Authority (hereinafter the NYCTA) (hereinafter together the defendants). In his notice ofclaim dated March 2002, the plaintiff alleged that he sustained injuries to his leg whileattempting to board a No. 43 bus. On April 10, 2002, the plaintiff testified at an examinationconducted pursuant to Public Authorities Law § 1276 (4) and § 1212 (5), inter alia,that while attempting to board, he slipped on the first step because the bus driver did not lowerthe bus. The plaintiff commenced this negligence action against the defendants and the busoperator identified as "John Doe," and issue was joined as to the MTA and the NYCTA in oraround August 2003. Thereafter, the Supreme Court denied the defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against them with leave to renew upon thecompletion of discovery. We affirm.
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint insofar as asserted against them with leave to renew upon thecompletion of discovery. As a threshold matter, contrary to the defendants' contention that thenotice of claim was defective for failing to state the manner in which the claim arose, theSupreme Court properly concluded that the plaintiff's testimony at the examination conductedpursuant to Public Authorities Law § 1276 (4) and § 1212 (5) supplemented thenotice of claim. A notice of claim is sufficient if it includes information which enables the publiccorporation to investigate the allegations contained therein (see Rosenbaum v City of New York, 8 NY3d 1, 10-11 [2006]). Inmaking a determination on the sufficiency of a notice of claim, a court must look to thecircumstances of the case, and is not limited to the four corners of the notice of claim, but mayconsider the testimony provided during examination conducted pursuant to Public AuthoritiesLaw § 1276 (4) and § 1212 (5) and any other evidence properly before the court(see D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 [1994]; Parker-[*2]Cherry v New York City Hous. Auth., 62 AD3d 845, 846[2009]; Kim L. v Port Jervis City SchoolDist., 40 AD3d 1042, 1044 [2007]). Here, the plaintiff's testimony, which was given lessthan one month after the defendants were served with the notice of claim, adequatelysupplemented the notice of claim, as it provided the defendants with sufficient informationregarding the manner in which the claim arose to allow them to conduct a meaningfulinvestigation into the claim (see Summitat Pomona, Ltd. v Village of Pomona, 72 AD3d 797, 799 [2010]; Kim L. v PortJervis City School Dist., 40 AD3d at 1044-1045).
Furthermore, while arguing that they were entitled to summary judgment dismissing thecomplaint insofar as asserted against them because they had no duty to lower the bus forboarding passengers, the defendants failed to submit any evidence in admissible formestablishing that they had no such duty under the particular facts of this case (cf. Sabella v City of New York, 58AD3d 712, 713 [2009]; Santiago vNew York City Tr. Auth., 69 AD3d 530 [2010]; Trainer v City of New York, 41 AD3d 202 [2007]). Instead, theymerely pointed to perceived gaps in the plaintiff's case which, in the absence of discovery,consisted only of the testimony he gave at the examination conducted pursuant to PublicAuthorities Law § 1276 (4) and § 1212 (5) and were insufficient to satisfy thedefendants' initial burden on their motion for summary judgment (see Plotits v Houaphing D. Chaou,LLC, 81 AD3d 620 [2011]). Since the defendants failed to establish their prima facieentitlement to judgment as a matter of law, this Court need not review the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
The defendants' remaining contentions are either without merit or improperly raised for thefirst time on appeal. Dillon, J.P., Leventhal, Chambers and Austin, JJ., concur.