Opinion
2012-10-24
In the Matter of Schmuel ABRAMOVITZ, appellant, v. CITY OF NEW YORK, et al., respondents.
Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for respondent New York City Transit Authority.
Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for respondent New York City Transit Authority.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the New York City Transit Authority, the petitioner appeals from an order of the Supreme Court, Kings County (Ash, J.), dated July 13, 2011, which denied the petition, and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the New York City Transit Authority (hereinafter the NYCTA) (see General Municipal Law § 50–e [1][a]; § 50–i[1][a]; Public Authorities Law § 1212[2]; Matter of Groves v. New York City Tr. Auth., 44 A.D.3d 856, 843 N.Y.S.2d 452;Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229;Adams v. New York City Tr. Auth., 140 A.D.2d 572, 573, 528 N.Y.S.2d 638). In determining whether to extend the time to serve a notice of claim, the court will consider whether, in particular, the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits ( seeGeneral Municipal Law § 50–e[5]; Matter of Groves v. New York City Tr. Auth., 44 A.D.3d 856, 843 N.Y.S.2d 452; Matter of White v. New York City Hous. Auth., 38 A.D.3d 675, 831 N.Y.S.2d 515;Matter of James v. City of N.Y. Dept. of Envtl. Protection, 37 A.D.3d 832, 830 N.Y.S.2d 593).
The petitioner failed to demonstrate that the NYCTA acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice of claim upon the City of New York approximately one week after the accident, he did not serve a notice of claim upon the NYCTA or commence this proceeding until more than four months after the consultation. The NYCTA did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding ( see Matter of Khalid v. City of New York, 91 A.D.3d 779, 780, 937 N.Y.S.2d 124;Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 889, 918 N.Y.S.2d 202;Matter of Peterson v. New York City Dept. of Envtl. Protection, 66 A.D.3d 1027, 1030, 887 N.Y.S.2d 269;Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d 920, 921, 829 N.Y.S.2d 578). Furthermore,the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the NYCTA was unacceptable ( see Matter of Thompson v. City of New York, 95 A.D.3d 1024, 1025, 943 N.Y.S.2d 769;Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 405–406, 837 N.Y.S.2d 330;Matter of Nieves v. Girimonte, 309 A.D.2d 753, 754, 765 N.Y.S.2d 64). Finally, the petitioner failed to show that the delay had not deprived the NYCTA of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.