Opinion
8279N Index 160281/17
01-31-2019
In re Melvin SMILEY, Petitioner–Respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Respondents–Appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants. Massimo & Panetta, P.C., Mineola (Nicholas J. Massimo of counsel), for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants.
Massimo & Panetta, P.C., Mineola (Nicholas J. Massimo of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Tom, Kahn, Singh, JJ.
Order, Supreme Court, New York County (Erika M. Edwards, J.), entered January 12, 2018, which granted the petition for leave to file a late notice of claim and deemed the notice annexed to petitioner's application timely served and filed nunc pro tunc, unanimously reversed, on the law, without costs, and the petition denied.
The court improvidently exercised its discretion in granting the petition. Although the failure to proffer a reasonable excuse for the delay in serving a notice of claim is not alone fatal to a petition for leave to file a late notice (see e.g. Matter of Semyonova v. New York City Hous. Auth., 15 A.D.3d 181, 182, 789 N.Y.S.2d 38 [1st Dept. 2005] ), petitioner also failed to demonstrate that respondents acquired actual notice of the essential facts of the incident within 90 days after his claim arose or a reasonable time thereafter. The record fails to show that respondents actually received an accident report that contained the essential facts of the claims within the statutory deadline or that the condition of the construction site has remained unchanged since the accident (see Alladice v. City of New York, 111 A.D.3d 477, 974 N.Y.S.2d 437 [1st Dept. 2013] ; Ordillas v. MTA N.Y. City Tr., 50 A.D.3d 391, 392, 854 N.Y.S.2d 311 [1st Dept. 2008] ). That respondents are represented by the same counsel in an action commenced in Queens County Supreme Court regarding the accident does not require a different result, because petitioner does not allege that a timely notice of claim was served upon respondents in that action (compare Matter of Fox v. New York City Dept. of Educ., 124 A.D.3d 887, 889, 2 N.Y.S.3d 210 [2d Dept. 2015] ).
Petitioner also failed to show that respondents would not be prejudiced in maintaining a defense on the merits as a result of the delay in filing a notice of claim, given the lack of timely, actual knowledge of the essential facts constituting the claims and the transitory nature of the alleged defective condition (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ; McClatchie v. City of New York, 105 A.D.3d 467, 468, 963 N.Y.S.2d 87 [1st Dept. 2013] ).