| Matter of Abramovitz v City of New York |
| 2012 NY Slip Op 07108 [99 AD3d 1000] |
| October 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Schmuel Abramovitz, Appellant, v City ofNew York et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for respondent NewYork City Transit Authority.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim upon the New York City Transit Authority, the petitioner appeals from an orderof 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 anaction 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 vNew York City Tr. Auth., 44 AD3d 856 [2007]; Small v New York City Tr. Auth., 14 AD3d 690, 691 [2005];Adams v New York City Tr. Auth., 140 AD2d 572, 573 [1988]). In determining whetherto extend the time to serve a notice of claim, the court will consider whether, in particular, thepublic corporation received actual notice of the essential facts constituting the claim within 90days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonableexcuse for the failure to serve a timely notice of claim, and whether the delay would substantiallyprejudice the public corporation in its defense on the merits (see General Municipal Law§ 50-e [5]; Matter of Groves vNew York City Tr. Auth., 44 AD3d 856 [2007]; Matter of White v New York City Hous. Auth., 38 AD3d 675[2007]; Matter of James v City of N.Y.Dept. of Envtl. Protection, 37 AD3d 832 [2007]).
The petitioner failed to demonstrate that the NYCTA acquired actual knowledge of theessential facts constituting the claim within 90 days after the accident or within a reasonable timethereafter. Even though the petitioner consulted with an attorney and served a notice of claimupon the City of New York approximately one week after the accident, he did not serve a noticeof claim upon the NYCTA or commence this proceeding until more than four months after theconsultation. The NYCTA did not have any knowledge of the petitioner's accident and injury, orthe legal theory on which liability was predicated against it prior to being served with papers inthe instant proceeding (see Matter ofKhalid v City of New York, 91 AD3d 779, 780 [2012]; Matter of Iacone v Town ofHempstead, 82 AD3d 888, 889 [2011]; Matter of Peterson v New York City Dept. ofEnvtl. Protection, [*2]66 AD3d 1027, 1030 [2009]; Matter of Narcisse v Incorporated Vil. ofCent. Islip, 36 AD3d 920, 921 [2007]). Furthermore, the petitioner failed to demonstratea reasonable excuse for his delay. The petitioner's excuse that he only recently came to realizethat he may have a claim against the NYCTA was unacceptable (see Matter of Thompson v City of NewYork, 95 AD3d 1024, 1025 [2012]; Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. ofBabylon, 41 AD3d 404, 405-406 [2007]; Matter of Nieves v Girimonte, 309AD2d 753, 754 [2003]). Finally, the petitioner failed to show that the delay had not deprived theNYCTA of the opportunity to find witnesses promptly or otherwise conduct a timely andmeaningful investigation in this matter. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.