| Matter of Ryan v New York City Tr. Auth. |
| 2013 NY Slip Op 06691 [110 AD3d 902] |
| October 16, 2013 |
| Appellate Division, Second Department |
| In the Matter of John Ryan et al.,Appellants, v New York City Transit Authority,Respondent. |
—[*1] Wallace D. Gossett (Steven S. Efron, New York, N.Y., of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the petitioners appeal from an order of the Supreme Court,Queens County (Gavrin, J.), dated May 22, 2012, which denied the petition.
Ordered that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement ofan action sounding in tort against the New York City Transit Authority (hereinafter theNYCTA) (see General Municipal Law § 50-e [1] [a]; Public AuthoritiesLaw § 1212 [2]; Matterof Groves v New York City Tr. Auth., 44 AD3d 856 [2007]; Small v New York City Tr.Auth., 14 AD3d 690, 691 [2005]). In determining whether to extend the time toserve a notice of claim, the court will consider whether, in particular, the publiccorporation 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 areasonable excuse for the failure to serve a timely notice of claim, and whether the delaywould substantially prejudice the public corporation in its defense on the merits (seeGeneral Municipal Law § 50-e [5]; Matter of Abramovitz v City of New York, 99 AD3d 1000,1000-1001 [2012]; Matter of Groves v New York City Tr. Auth., 44 AD3d at856-857; Matter of White vNew York City Hous. Auth., 38 AD3d 675 [2007]).
Here, the petitioners failed to demonstrate a reasonable excuse for the five-monthdelay after the expiration of the 90-day statutory period in serving the petition andproposed notice of claim. The injured petitioner's assertion that he did not immediatelyappreciate the nature and severity of his injuries until approximately five months after thesubject accident is unavailing without supporting medical evidence explaining why theseverity of the injuries took so long to become apparent and to be diagnosed (see Matter of Walker v RiverheadCent. Sch. Dist., 107 AD3d 727 [2013]; Matter of Minkowicz v City of New York, 100 AD3d 1000[2012]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 151 [2008]). Theinjured petitioner also failed to proffer any excuse for the further three-month delaybetween the time that he retained his attorneys and the time that he served the notice ofclaim (see Matter of Grant vNassau County Indus. Dev. Agency, 60 AD3d 946, 947 [2009]; Matter ofGillum v County of Nassau, 284 AD2d 533 [2001]; Matter of McAllister vCounty of Nassau, 202 AD2d 670, 671 [1994]).[*2]
Further, the petitioners failed to demonstrate thatthe NYCTA acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the accident or within a reasonable time thereafter. The policeaccident report prepared by the responding police officer at the scene of the subjectvehicular accident did not provide the NYCTA with actual knowledge of the injuredpetitioner's accident and injury, or that a potentially actionable wrong had beencommitted by the NYCTA against the injured petitioner (see Matter of Abramovitz vCity of New York, 99 AD3d at 1001; Matter of Khalid v City of New York, 91 AD3d 779, 780[2012]; Matter of Taylor vCounty of Suffolk, 90 AD3d 769, 770 [2011]). Furthermore, the motor vehicleaccident report prepared by the injured petitioner 16 days after the accident and filed withthe New York State Department of Motor Vehicles (hereinafter the DMV) did notprovide the NYCTA with timely, actual knowledge of the petitioners' claim. The fact thatthe DMV had knowledge of the injured petitioner's accident, without more, cannot beconsidered actual knowledge by the NYCTA regarding the essential facts constitutingthe claim against it (see Matter of Walker v Riverhead Cent. Sch. Dist., 107AD3d at 727; Matter of Klass vCity of New York, 103 AD3d 800, 801 [2013]; Matter of Martinez v NewYork City Hous. Auth., 250 AD2d 686, 687 [1998]).
Moreover, the petitioners offered no evidence to rebut the NYCTA's contention thatthe delay had deprived it of the opportunity to find and interview witnesses promptly, orotherwise conduct a timely and meaningful investigation of the claim (see Godfrey v City of NewRochelle, 74 AD3d 1018, 1019 [2010]; Matter of Lorseille v New York CityHous. Auth., 295 AD2d 612 [2002]; Matter of DiBella v City of New York,234 AD2d 366, 367 [1996]).
Accordingly, the Supreme Court providently exercised its discretion in denying thepetition for leave to serve a late notice of claim. Skelos, J.P., Dickerson, Lott and Austin,JJ., concur.