Kopitova v. New York City Tr. Auth.

Kopitova v New York City Tr. Auth. 2026 NY Slip Op 05524 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Varvara Kopitova, appellant, v New York City Transit Authority, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-03752, (Index No. 521810/20) Francesca E. Connolly, J.P. Linda Christopher Lillian Wan Susan Quirk, JJ. William Pager, Brooklyn, NY, for appellant. Anna J. Ervolina, Brooklyn, NY (Theresa Frame of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Inga M. O'Neale, J.), dated March 5, 2025. The order granted the defendant's motion pursuant to CPLR 3211 to dismiss the complaint. ORDERED that the order is affirmed, with costs. On February 6, 2020, the plaintiff allegedly slipped and fell on a staircase at a subway station. On May 7, 2020, the plaintiff's attorney e-mailed two attorneys employed by the defendant, New York City Transit Authority (hereinafter NYCTA), inquiring as to how to e-file or otherwise serve a notice of claim. The notice of claim was attached to the e-mail. One of the NYCTA attorneys replied, stating that NYCTA was not accepting service via personal delivery, e-mail, or fax and that the plaintiff's attorney should refer to the applicable statutes. The plaintiff subsequently commenced this action to recover damages for personal injuries allegedly sustained as a result of the fall. Thereafter, NYCTA moved pursuant to CPLR 3211 to dismiss the complaint on the ground that the plaintiff had not served the complaint with a notice of claim and, thus, failed to comply with the notice of claim requirements of General Municipal Law § 50-e and Public Authorities Law § 1212. The plaintiff opposed the motion, arguing that she served the notice of claim by e-mail. In reply, NYCTA asserted that the purported service was not valid. In an order dated March 5, 2025, the Supreme Court granted NYCTA's motion. The plaintiff appeals. "A notice of claim is a condition precedent to an action or special proceeding sounding in tort against a public corporation" (Cruceta v New York City Tr. Auth., 244 AD3d 1187, 1188; see General Municipal Law § 50-e[1][a]). General Municipal Law § 50-e(3)(a) provides that "[t]he notice shall be served on the public corporation against which the claim is made by delivering a copy thereof personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation or, in a city with a population of over one million, by electronic means in a form and manner prescribed by such city." The statute further provides that, "'if a notice is timely served, but in a manner not in compliance with the statute, the service shall be valid if the notice is actually received by a proper [*2]person within the time specified in the statute and the public corporation fails to return the notice, specifying the defect in the manner of service, within 30 days after the notice is received'" (Watts v Jamaica Hosp. Med. Ctr., 222 AD3d 698, 700, quoting Smith v Scott, 294 AD2d 11, 19; see General Municipal Law § 50-e[3][c]). Contrary to the plaintiff's contention, the e-mail did not constitute valid service of the notice of claim pursuant to General Municipal Law § 50-e(3)(a), as e-mail was not a form and manner prescribed for service upon NYCTA (see id.; see generally Adam v New York City Tr. Auth., 177 AD3d 832, 834; Glasheen v Valera, 116 AD3d 505, 505). Contrary to the plaintiff's further contention, NYCTA did not waive an objection to the defect in the manner of service, as one of the NYCTA attorneys replied to the e-mail within 10 minutes of its receipt and stated, inter alia, that NYCTA did not accept service via e-mail (see Watts v Jamaica Hosp. Med. Ctr., 222 AD3d at 700; cf. Gruber v Erie County Water Auth., 71 AD3d 1572, 1573). The plaintiff's remaining contention is without merit. Accordingly, the Supreme Court properly granted NYCTA's motion pursuant to CPLR 3211 to dismiss the complaint. CONNOLLY, J.P., CHRISTOPHER, WAN and QUIRK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court