| Matter of Hill v New York City Tr. Auth. |
| 2009 NY Slip Op 09227 [68 AD3d 866] |
| December 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Bradford Hill, Respondent, v New YorkCity Transit Authority, Appellant. |
—[*1] Ronald J. Katter (Michael I. Josephs, Forest Hills, N.Y., of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the New York City Transit Authority appeals from an order of the SupremeCourt, Queens County (Lane, J.), dated November 17, 2008, which granted the petitioner'smotion, in effect, for leave to reargue the petition, which had been determined in an order datedApril 24, 2008, and thereupon, granted the petition.
Ordered that the order dated November 17, 2008, is reversed, on the facts and in the exerciseof discretion, with costs, and the petitioner's motion, in effect, for leave to reargue the petition isdenied.
The Supreme Court improvidently exercised its discretion in granting the petitioner's motion,in effect, for leave to reargue the petition, since the Supreme Court did not overlook ormisapprehend the facts or law in its initial determination, or mistakenly arrive at its earlierdetermination (see CPLR 2221 [d]; Everhart v County of Nassau, 65 AD3d 1277 [2009]; McDonald v Stroh, 44 AD3d 720,721 [2007]; E.W. Howell Co., Inc. vS.A.F. La Sala Corp., 36 AD3d 653, 654 [2007]). The petitioner failed to offer areasonable excuse for failing to serve a timely notice of claim. While the petitioner may havebeen physically incapacitated during the first 4½ months after the accident, due to anunrelated illness, he failed to proffer a reasonable excuse as to why his attorney waited anadditional 8½ months after he was retained before seeking leave to serve the late notice ofclaim (see Matter of Smith v BaldwinUnion Free School Dist., 63 AD3d 1078, 1079 [2009]; Matter of Baglivi v Town ofSouthold, 301 AD2d 597, 598 [2003]; Matter of Kittredge v New York City Hous.Auth., 275 AD2d 746 [2000]). Furthermore, the appellant did not acquire actual knowledgeof the essential facts constituting the claim within 90 days after the claim arose or a reasonabletime thereafter (see General Municipal Law § 50-e [1], [5]). Here, neither theincident report completed by the bus driver involved in the underlying incident nor theaccident/crime investigation report completed by a manager employed by the appellant on thedate of the accident, both of which indicated that the petitioner lost his balance, slipped on thelast step, and then tripped and fell on the sidewalk, provided the appellant with actual knowledgeof the essential facts constituting the petitioner's present claim [*2]that he was caused to trip and fall by reason of the hazardoussidewalk and that the appellant was negligent in discharging the petitioner onto the hazardoussidewalk (see Troy v Town of HydePark, 63 AD3d 913, 914 [2009]; Matter of Carpenter v City of New York, 30 AD3d 594, 595[2006]; Matter of Henriques v City ofNew York, 22 AD3d 847, 848 [2005]; Johnson v Katonah-Lewisboro SchoolDist., 285 AD2d 490 [2001]). Finally, the petitioner failed to establish that the 10-monthdelay after the expiration of the 90-day statutory period would not substantially prejudice theappellant in maintaining a defense on the merits (see Matter of Castro v Clarkstown Cent. School Dist., 65 AD3d1141 [2009]; Troy v Town of Hyde Park, 63 AD3d at 914; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 152 [2008]). Fisher, J.P., Santucci, Dickerson,Chambers and Lott, JJ., concur.