Opinion
0106761/2007.
July 17, 2007.
DECISION and ORDER
This is a personal injury proceeding where the petitioner allegedly suffered serious injuries from an automobile accident in the Midtown Tunnel, New York, N.Y., on January 8, 2007. Petitioner here seeks leave to file a notice of claim, nunc pro tune, on respondents the Triborough Bridge and Tunnel Authority (the "Authority") and Jonel Okolisan. Respondents do not oppose.
I. Background
On January 8, 2007 petitioner was driving his vehicle in the Midtown Tunnel when a vehicle owned by the Authority, and operated by Okolisan, allegedly changed lanes, from a closed fast lane to a open slow lane, and collided with petitioner's car. He claims he suffered severe injuries specifically to his neck, back, and right shoulder.
Petitioner filed his notice of claim on May 18, 2007. Prior to filing, petitioner's counsel sent three letters dated February 8, February 22, and March 26, 2007 outlining that petitioner had retained counsel and would be pursuing a personal injury/negligence claim against the Authority and Okolisan as a result of the January 8 accident. The March 26 letter also contained documents regarding the claim.
Petitioner argues that respondents would not suffer any unfair prejudice if the late notice of claim is allowed since the accident scene remains unchanged and there were no witnesses other than the drivers. Further, petitioner argues that the Authority was put on notice of the claim from its counsel's three letters during February and March 2007.
II. Conclusions of Law
General Municipal Law § 50-e (5) confers upon the court discretion to determine whether to grant or deny leave to serve a late notice of claim. In the Matter of Eve Dubowy v. City of New York, 305 A.D.2d 320, 321 (1st Dept. 2003). The factors the court must consider to determine if leave should be granted are: (1) whether the movant provided a reasonable excuse for the failure to serve notice within the statutory time frame; (2) whether the municipality had actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter; and (3) whether the delay would substantially prejudice the municipality in its defense. Dubowy, 305 A.D.2d at 321. The presence or absence of any factor is not determinative and the absence of a reasonable excuse is not fatal. Id. This provision is remedial in nature, and should be liberally construed. Id.
Here, petitioner has not provided an excuse for why the notice of claim was filed on May 18, 2007 approximately 39 days past the 90 day deadline. However, the Authority received three letters from petitioner's counsel putting them on notice that a lawsuit would be filed against them regarding the January 8, 2007 accident. Also, since there were no witnesses to the accident, other than the drivers, and petitioner seems to have a legitimate claim, the delay would not prejudice the Authority in its defense. See Dubowy, 305 A.D.2d at 321 (§ 50-e is designed to ensure municipality has an adequate opportunity to explore merits of claim while information is available, but is not intended ro defeat rights of those with legitimate claims). Accordingly, it is
ORDERED that petitioner's motion is granted and the notice of claim, in the form attached to the moving papers, is deemed served on respondents Triborough Bridge and Tunnel Authority and Jonel Okolisan, nunc pro tunc.