Opinion
No. 10165/10.
3-5-2010
In the Matter of the Application of ADMIRAL INDEMNITY COMPANY A/S/O THE SOHO GREENE CONDOMINIUM, Petitioner, v. CITY OF NEW YORK, Respondent.
By order to show cause dated February 8, 2010, petitioner moves for an order granting it leave to serve a late notice of claim upon respondent and deeming the notice timely served nunc pro tunc. Respondent opposes the petition. For the following reasons, the petition is granted.
I. CONTENTIONS
Petitioner alleges that one year ago, on February 11, 2009, an employee of the New York City Police Department (NYPD) drove a motor vehicle into its subrogor's building. (Affirmation of Alan Wenig, Esq., dated Feb. 4, 2010 [Wenig Aff.]). Although the vehicle is described in the Police Accident Report (report) as a taxi, it also clearly reflects that the taxi was an NYPD vehicle and that the driver was an NYPD employee. (Id., Exh. A). The report contains a detailed description, apparently relayed by the driver to the reporting officer, of how the accident occurred:
Driver of veh. #1 states that she was travelling n/b on Greene St. When vehicle started to pull left. When she tried to compensate and correct the vehicle, she lost control of vehicle striking a Jersey barrier and steps of a building. Pavement at accident location is cobble stone and had slight mist on them during time of accident.
The accident occurred at 3 a.m. (Id.).
Petitioner explains its failure to file a timely notice of claim with respondent as resulting from having failed to notice on the report that the taxi was driven by an NYPD employee. (Wenig Aff., Exhs. B, C). Petitioner also claims that the report afforded respondent with actual notice of the essential facts constituting its claim, that such actual notice precludes any contention that respondent is prejudiced by the late notice, and that as the claim is for property damage only, the available estimates, appraisals, and photographs eliminate any prejudice. (Id.).
Respondent opposes the application, asserting that given the clear indication in the report of the NYPD's direct involvement in the accident, there is no reasonable excuse for failing to serve the notice timely. (Affirmation of Jessica Wisniewski, Esq., dated Feb. 26, 2010). Respondent denies having received actual notice of the claim, arguing that the mere happening of an occurrence with a City agency does not constitute actual notice of the facts from which negligence may be inferred, observing that "there are many instances in which NYPD vehicles are involved in accidents where another driver or pedestrian is entirely at fault." It also contends that the report was insufficiently detailed and that petitioner failed to demonstrate an absence of prejudice resulting from the delay. (Id.).
II. ANALYSIS
Pursuant to General Municipal Law (GML) § 50-a, a tort action against a municipality must be commenced by service of a notice of claim upon the municipality within 90 days of the date on which the claim arose. The court may extend the time to file the notice, and in deciding whether to grant the extension, it must consider, inter alia, whether the municipality acquired actual knowledge of the essential facts constituting the claim within the 90-day deadline or a reasonable time thereafter, whether the delay in serving the notice of claim substantially prejudiced the municipality in its ability to maintain a defense, and whether the claimant has a reasonable excuse for the delay. (GML § 50-e; Grant v. Nassau County Indus. Dev. Agency, 60 AD3d 946, 947 [2d Dept 2009]).
A. Actual knowledge
A municipality receives actual knowledge of the essential facts constituting a claim when it acquires actual knowledge of the facts underlying the theory on which liability is predicated (Grande v. City of New York, 48 AD3d 565 [2d Dept 2008]), not merely knowledge of the facts underlying the incident (Chattergoon v. New York City Hous. Auth., 161 AD2d 141 [1 Dept 1990], lv denied 76 NY2d 875).
Dept 2008] [prejudice undermined by presence at scene of State Police at time of accident and immediate investigation which including interviewing witnesses and taking photographs of location as it existed at time of accident, which culminated in report readily available to respondent]).
An accident report may provide a municipality with actual knowledge of a claim, if the report has been filed with the appropriate official, shows ownership or control over the location where the accident occurred, and indicates the defect causing the injury and the negligence or fault of the location's owner. (62A NY Jur 2d, Government Tort Liability § 416 [2010]). It must be readily inferred from the report that a potentially actionable wrong had been committed. (Devivo v. Town of Carmel, 68 AD3d 991 [2d Dept 2009]).
There is no dispute that the accident was investigated and reported by an NYPD employee who provided details from which it may be reasonably inferred that the accident was caused by the negligence of an NYPD employee. Consequently, the report furnishes actual knowledge of the essential facts constituting the claim. (See Matter of Schiffman v. City of New York, 19 AD3d 206, 207 [1 Dept 2005] [City acquired notice of essential facts based on facts that police were called to scene and were directly involved in all aspects of claims emanating from death of plaintiffs decedent]). As there is no indication that anyone other than the driver was at fault here, respondent's argument to the contrary borders on the frivolous.
Dept 2008]), it is hereby
B. Prejudice
Given the detailed report and absence of any witnesses other than the driver, there can be no articulable prejudice arising from the delay. (See In re Caridi v. New York Convention Center Operating Corp., 47 AD3d 526 [1
C. Reasonable excuse
As the involvement of an NYPD driver and vehicle is clearly set forth in the report, petitioner has not offered a reasonable excuse for its delay in seeking to sue respondent.
IV. CONCLUSION
As petitioner's failure to offer a reasonable excuse for its delay "is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondents]" (LaMay v. County of Oswego, 49 AD3d 1341 [4
ORDERED, that petitioner's application for leave to serve a late notice of claim is granted; and it is further
ORDERED, that petitioner file and serve a notice of claim upon respondent within 20 days of the date of this order.
This constitutes the decision and judgment of the court.