Guerre v. New York City Transit Authority

Recitation as per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: NYSCEF Doc #s 16-17; 27-30; 37-38 by Def. NYSCEF Doc #s 2; 31-36 by Plaintiff NYSCEF Doc # 26 DECISION/ORDER Upon the foregoing cited papers and after oral argument on November 13, 2024, pursuant to CPLR §3211, the Decision and Order on Defendant’s Motion to Dismiss Plaintiff’s complaint is GRANTED. On September 29, 2022, pursuant to General Municipal Law §50-e(5), Plaintiff filed an Order to Show Cause (“OSC”) seeking leave to file a late Notice of Claim¹ which Defendant opposed.² On January 3, 2023, the Court granted Plaintiff’s OSC³ (C. Mallafre-Melendez, J.) and Defendant appealed.⁴ On April 17, 2024 the Appellate Division Second Department issued an Order reversing the Court’s decision and further stated that “in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.”⁵ The Court will not consider arguments regarding Plaintiff’s failure to comply with the General Municipal Law. The issues raised herein were previously litigated and are barred by res judicata.⁶ Pursuant to binding Appellate Division, Second Department authority, it is the law of the case that Plaintiff’s OSC is denied and that the entire proceeding is dismissed.⁷ This constitutes the Decision and Order of the Court. Dated: January 14, 2025