Wolfson v. Metropolitan Transportation Authority , 2 N.Y.S.3d 79 ( 2014 )

Wolfson v Metropolitan Transp. Auth. (2014 NY Slip Op 09050)

Wolfson v Metropolitan Transp. Auth.

2014 NY Slip Op 09050

Decided on December 30, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2014
Acosta, J.P., Moskowitz, Richter, Feinman, Clark, JJ.

13860 150429/11

[*1] Stanley Wolfson, et al., Plaintiffs-Appellants, —

v

Metropolitan Transportation Authority, et al., Defendants-Respondents.

Segan, Nemerov & Singer, P.C., New York (Jeff Nemerov of counsel), for appellants.

Sullivan & Brill, LLP, New York (Adam A. Khalil of counsel), for respondents.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered April 5, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for leave to serve a late notice of claim upon defendant Phillip J. Mann, unanimously affirmed, without costs.

Plaintiff Stanley Wolfson's vehicle was allegedly struck by a bus operated by defendant Mann and owned by nonparty MTA Bus Company, a subsidiary of defendant the Metropolitan Transportation Authority (MTA).

There is no evidence that plaintiff presented the requisite demand for settlement of his claims to MTA Bus Company within the then-applicable one-year statutory period for commencing a personal injury action against a public authority (see Public Authorities Law § 1276[1], [former (2)]; Arrigo v Metro-North Commuter R.R. , 244 AD2d 208 [1st Dept 1997]; see also Burgess v Long Is. R.R. Auth. , 79 NY2d 777, 778 [1991]). Although there is no statutory or legal authority requiring service of a demand on an employee of a subsidiary of the MTA, the motion court properly determined that an action should not proceed against Mann individually, because MTA Bus Company, his employer, is the real party in interest (see Albano v Hawkins , 82 AD2d 871, 871 [2d Dept 1981]). Indeed, it is undisputed that Mann was operating the bus owned by the MTA Bus Company during the course of his employment when the accident occurred; therefore, he is entitled to indemnification from his employer (see Public Authorities Law § 1276[3]; Albano , 82 AD2d at 871).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 30, 2014

CLERK