Opinion
2014-07-16
Neil HUNTE, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant.
Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for appellant. Michael S. Lamonsoff, PLLC, New York, N.Y. (Ryan Lawlor and Stacey Haskel of counsel), for respondent.
Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for appellant. Michael S. Lamonsoff, PLLC, New York, N.Y. (Ryan Lawlor and Stacey Haskel of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated July 25, 2013, which granted the plaintiff's motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim.
ORDERED that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the New York City Transit Authority ( see General Municipal Law § 50–e[1][a]; Public Authorities Law § 1212[2]; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312;Matter of Groves v. New York City Tr. Auth., 44 A.D.3d 856, 843 N.Y.S.2d 452;Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229). In determining whether to extend the time to serve a notice of claim, the court will consider whether (1) the claimant has a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense on the merits ( seeGeneral Municipal Law § 50–e[5]; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312;Matter of Abramovitz v. City of New York, 99 A.D.3d 1000, 1000–1001, 953 N.Y.S.2d 137;Matter of Groves v. New York City Tr. Auth., 44 A.D.3d at 856–857, 843 N.Y.S.2d 452).
The Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to serve a late notice of claim in this action. MASTRO, J.P., HALL, LOTT, AUSTIN and DUFFY, JJ., concur.