Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1 Answering Affidavits/ Affirmations 2 Reply Affidavits/ Affirmations 3 Decision / Order In this action in which plaintiff is seeking $800 for the loss of plaintiff’s bicycle allegedly left in defendant’s care, defendant Port Authority of New York & New Jersey (“Port Authority”) files the instant motion to dismiss pursuant to CPLR 3211(a)(7) for failing to state a claim, and CPLR 3211(a)(2) for plaintiff’s alleged failure to serve a formal notice of claim 60 days prior to commencing this action. Upon the foregoing cited papers, defendant’s motion to dismiss this action is granted to the extent of dismissing this action without prejudice to plaintiff filing a formal notice of claim with Port Authority, and then re-filing plaintiff’s action, either in this Court, or, if plaintiff prefers, as a small claims action. Accepting plaintiff’s allegations as true for purposes of the motion, on May 3, 2024, plaintiff was riding a bicycle and was involved in an accident that occurred at or around 999 Fort Washington Avenue in upper Manhattan. Two Port Authority “guards” aided plaintiff by helping an ambulance find the plaintiff (it is uncertain from the papers whether plaintiff is referring to Port Authority Police). Plaintiff was taken to a hospital by the ambulance, allegedly leaving the bicycle with the Port Authority guards. On May 6, 2024 by telephone, and on May 11, 2024 in person at defendant’s Fort Lee, NJ facility/office, plaintiff spoke with a security supervisor and an “officer” about retrieving the bicycle that plaintiff believed was in defendant’s custody and was informed that defendant did not have, and thus could not return, the personal property plaintiff was seeking. Although there is a reference to a “police report” in the endorsed complaint, it appears to be an NYPD (not Port Authority) police report from the 33rd Precinct located in the Washington Heights neighborhood of Manhattan. As to the branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(7) for failing to state a claim, the Court notes that dismissal is not an appropriate remedy for alleged shortcomings in an endorsed complaint. “The Court has encountered a number of motions seeking to dismiss endorsed complaints, and denied nearly all of them in keeping with the strong public policy against dismissal,” of such pleadings and instead favoring directing plaintiff’s to serve and file formal complaints pursuant to Civil Court Act §§902 and 903 to address any alleged shortcomings. Jordan v. New York City Health & Hosps. Corp., Index No. CV-10638-22/BX, slip op., at 2 (Civ. Ct., Bronx Co. Oct. 10, 2023) (collecting cases). Endorsed pleadings are a purposefully-crafted mechanism of the Civil Court Act to promote access to justice for everyday New Yorkers (a feature, not a bug, of Civil Court practice), and “as long as a plaintiff can articulate ‘an arguable cause of action,’ through a combination of pleadings language, motions or other practice, a cause of action that might otherwise require specificity in pleading may proceed by endorsed complaint.” Morris v. Pivonka, 2023 NY Slip Op 50868(U), *1 (Civ. Ct., Bronx Co. Aug. 17, 2023), citing, Southern Blvd. Sound v. Felix Storch, Inc., 165 Misc. 2d 341, 342 (Civ. Ct., New York Co. 1995), affd. in relevant part, 167 Mise. 2d 731 (App. Term, 1st Dept. 1996). See also, Holloway v. New York City Transit Auth., 182 Mise. 2d 749, 753 (Civ. Ct., New York Co. 1999) (citing Southern Blvd. Sound and others in noting that “the only substantive pleading requirement of an endorsed complaint is that it shall set forth the nature and substance of the cause of action,” and “that courts have sustained endorsed complaints which merely allege ‘defamation’”). Much like for small claims court actions, motions to dismiss are strongly disfavored in the context of an endorsed complaint with the narrow exception that “the court should entertain motion practice if it presents a clear issue of law,” for which there is no reasonable hope that additional clarity would tip against dismissal. Loakman v. Transport Workers Union of Greater NY, AFL-CIO, Local 100, 11 Misc. 3d 936, 938 (Civ. Ct., New York Co. 2006). On that basis, the branch of defendant’s motion seeking to dismiss for failure to state a claim is denied.1 On the other hand, the branch of defendant’s motion seeking dismissal for lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) does fall within the narrow band of instances where a motion to dismiss could be an appropriate response to an endorsed complaint as contemplated by Loakman. The law requires that a plaintiff seeking to file a lawsuit against the Port Authority must serve a notice of claim with Port Authority and must do so at least 60 days prior to commencing the action. See, 1950 N.Y. Laws ch. 30 (codified in relevant part as Unconsolidated Laws ch. 179 §7). The lawsuit must also be filed within one year of the incident. Id. Even if the Court were to accept, as plaintiff urges, that plaintiff’s telephone call to defendant on May 6, 2024, and personal visit to the Port Authority and hour long discussion with the officers on May 11, 2024, satisfies the notice of claim requirements contained in Unconsolidated Laws ch. 179 §8, it is apparent from the record that plaintiff did not wait the requisite 60 days from serving such notice to then file the endorsed complaint.2 See, DaSilva v. C&E Ventures Inc., 83 A.D.3d 551, 551-552 (1st Dept. 2011) (finding that ‘notice of intention to make claim’ satisfied time and content requirements of Unconsolidated Laws ch. 179 §7). Plaintiff filed his endorsed complaint on May 29, 2024, which is only 18 or 23 days after the alleged notice of claim. Plaintiff’s failure to wait 60 days after service, without defendant’s waiver, deprives the Court of jurisdiction deprives the Court of subject matter jurisdiction by operation of defendant’s sovereign immunity, which cannot be cured merely by staying the proceeding. See, Lumberman Mut. Cas. Co. v. Port Authority, 137 A.D.2d 795, 796 (2d Dept. 1988). Accordingly, the Court must grant the branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(2). This dismissal, however, is without prejudice. Unlike most questions of subject matter jurisdiction, plaintiff’s jurisdictional dilemma is not permanent and can be remedied. Defendant does not appear to dispute the timing of the alleged incident on May 3, 2024. It would then appear that plaintiff is free to serve a notice of claim in compliance with Unconsolidated Laws ch. 179 §§7 and 8, and then re-file and serve a new complaint or endorsed complaint (or a claim in Small Claims Court) any time 60 or more days after serving the notice of claim, provided the new action is commenced within one year of the incident. Thus, as long as defendant serves a compliant notice of claim on or before May 5, 2025, and then waits 60 days before recommencing a new action on or before May 5, 2025 (May 3, 2025 falls on a Saturday), such action would be timely and also extinguish defendant’s presently-stated sovereign immunity and jurisdictional defense. Accordingly, the Court’s decision is expressly without prejudice to plaintiff doing so.3 Conclusion While the Court must dismiss this action for now, this dismissal is without prejudice to plaintiff re-commencing this action with a notice of claim and subsequent new civil action pursuant to the Unconsolidated Laws, which may be commenced in either the General Civil or Small Claims Parts of the Court. Accordingly, it is: ORDERED that the branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(7) is DENIED; and it is further ORDERED that the branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(2) is GRANTED WITHOUT PREJUDICE to plaintiff serving a notice of claim upon defendant pursuant to Unconsolidated Laws ch. 179 §§7 and 8 on or before March 6, 2025, and subsequently commencing a new action seeking the same or similar relief against defendant no less than 60 days after such service and in any no later than May 5, 2025. This constitutes the Decision and Order of the Court. Dated: August 16, 2024
