| Matter of Boskin v New York City Tr. Auth. |
| 2007 NY Slip Op 07840 [44 AD3d 851] |
| October 16, 2007 |
| Appellate Division, Second Department |
| In the Matter of Colleen Boskin, Appellant, v New YorkCity Transit Authority et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondent New York CityTransit Authority. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondents City of New York and New York City PoliceDepartment.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve latenotices of claim on the New York City Transit Authority, the City of New York, and the NewYork City Police Department, the petitioner appeals from so much of an order of the SupremeCourt, Kings County (Knipel, J.), dated July 6, 2006, as denied that branch of her petition whichwas for leave to serve late notices of claim as to the negligence cause of action.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofdenying that branch of the petition which was for leave to serve a late notice of claim as to thenegligence cause of action on the New York City Transit Authority and substituting therefor aprovision granting that branch of the petition; as so modified, the order is affirmed insofar asappealed from with one bill of costs payable by the petitioner to the City of New York and theNew York City Police Department and one bill of costs payable by the New York City TransitAuthority to the petitioner.
The Supreme Court, inter alia, denied that branch of the petition which was for leave to servelate notices of claim as to the negligence cause of action, finding that while the claim was [*2]not patently without merit, the respondents did not receive actualnotice of the essential facts constituting the claim, nor did they acquire such knowledge within 90days or a reasonable period after the occurrence. Although the record supports that conclusionwith respect to the New York City Police Department (hereinafter the NYPD) and the City ofNew York, the same cannot be said for the New York City Transit Authority (hereinafterNYCTA), whose employees were directly involved in the events leading up to and culminatingin the decedent's electrocution and whose reports reflect actual knowledge sufficient to satisfy thestatute in this regard. Moreover, the NYCTA reports, which identified those of its employeeswho were present during the incident and gave reasonable notice from which it could be inferredthat a potentially actionable wrong had been committed by the respondents, reflect a prompt andthorough investigation into the event, while those prepared by the NYPD indicate mere generalknowledge of the event (see Washington v City of New York, 72 NY2d 881 [1988];Weber v County of Suffolk, 208 AD2d 527 [1994]).
The petitioner further demonstrated that the delay in serving the notice of claim, which wasnot particularly lengthy and was attributable in significant part to the nature of the informationconveyed by the NYPD, would not cause the NYCTA to suffer substantial prejudice inmaintaining its defense on the merits. Crane, J.P., Spolzino, Krausman and McCarthy, JJ.,concur.