ESTATE OF CZAJKOWSKI v. New York City Transit Authority, et al., respondents. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated January 9, 2025, and (2) an order of the same court dated May 14, 2025.  The order dated January 9, 2025, granted the motion of the defendants New York City Transit Authority and David Concepcion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.  The order dated May 14, 2025, insofar as appealed from, denied that branch of the plaintiffs' motion which was for leave to renew their opposition to the motion of the defendants New York City Transit Authority and David Concepcion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the appeal from the order dated January 9, 2025, is dismissed as abandoned;  and it is further,

ORDERED that the order dated May 14, 2025, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants New York City Transit Authority and David Concepcion.

The plaintiffs, Estate of Tadeusz W. Czajkowski, Joanna Szledinska, Emilia Czajkowska, Arkadiusz Bojko, and Romuald Magda, commenced this action against the defendants New York City Transit Authority and David Concepcion (hereinafter together the defendants), among others, inter alia, to recover damages for personal injuries and wrongful death arising out of a collision in April 2020 between a New York City bus and a bicycle ridden by Tadeusz W. Czajkowski.  The plaintiffs failed to appear for a statutory hearing prior to the commencement of the action.

The defendants thereafter moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.  The plaintiffs opposed the motion.  In an order dated January 9, 2025, the Supreme Court granted the defendants' motion (hereinafter the January 2025 order).

The plaintiffs thereafter moved, inter alia, for leave to renew their opposition to the defendants' motion to dismiss the complaint insofar as asserted against them.  The defendants opposed the plaintiffs' motion.  In an order dated May 14, 2025, the Supreme Court, among other things, denied that branch of the plaintiffs' motion (hereinafter the May 2025 order).

The plaintiffs appeal from the January 2025 order and the May 2025 order.

The appeal from the January 2025 order must be dismissed as abandoned, as the plaintiffs do not request modification or reversal of any portion of that order in their brief (see Matter of Dahan, 231 AD3d 945, 947).

“A motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’ and ‘shall contain reasonable justification for the failure to present such facts on the prior motion’ ” (Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 222 AD3d 721, 723 [citation omitted], quoting CPLR 2221[e][2], [3] ).  “Compliance with a demand for a General Municipal Law § 50–h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action” (A.R. v Urrutia, 212 AD3d 670, 671 [internal quotation marks omitted];  see Aikhoje v City of New York, 235 AD3d 610, 612).

Here, the Supreme Court properly denied that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion to dismiss the complaint insofar as asserted against them.  The plaintiffs failed to offer any new facts or evidence that would have changed the prior determination with respect to the defendants' motion (see Aikhoje v City of New York, 235 AD3d at 612–613;  Seegopaul v MTA Bus Co., 210 AD3d 715, 716–717).

DUFFY, J.P., CHRISTOPHER, LANDICINO and LOVE, JJ., concur.