Opinion
2019–09297 Docket No. 706233/19
02-09-2022
In the Matter of Dahlia IBRAHIM, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents-respondents, et al., respondents.
Law Office of Stephen A. Strauss, P.C., Whitestone, N.Y. (Ira Levine of counsel), for appellant.
Law Office of Stephen A. Strauss, P.C., Whitestone, N.Y. (Ira Levine of counsel), for appellant.
HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered July 15, 2019. The order, insofar as appealed from, denied the petition.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On June 8, 2018, the petitioner, a passenger on a bus which was traveling on the Whitestone Bridge, allegedly was injured when an unidentified vehicle struck another vehicle, causing that vehicle to then collide with the bus. A police accident report was prepared by the Triborough Bridge and Tunnel Authority (hereinafter TBTA), and a separate report was prepared by the New York City Transit Authority (hereinafter NYCTA). Within 90 days after the accident, the petitioner served a notice of claim on the City of New York. On March 1, 2019, the petitioner served a notice of claim without leave of court upon the NYCTA, which alleged, inter alia, that the petitioner sustained multiple personal injuries based upon the NYCTA's employee's negligence in failing to properly operate the bus. In April 2019, the petitioner commenced this proceeding against, among others, the NYCTA, seeking leave to serve a late notice of claim. The Supreme Court denied the petition, and the petitioner appeals.
In determining whether to exercise discretion to extend the time for a petitioner to serve a notice of claim, the court must consider all relevant facts and circumstances, including, but not limited to, whether (1) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the delay would substantially prejudice the municipality or public corporation in its defense, and (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see General Municipal Law § 50–e[5] ; Matter of Nadler v. City of New York, 166 A.D.3d 618, 87 N.Y.S.3d 335 ; Matter of Naar v. City of New York, 161 A.D.3d 1081, 1082, 77 N.Y.S.3d 706 ; Matter of Tejada v. City of New York, 161 A.D.3d 876, 877, 77 N.Y.S.3d 95 ; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312 ).
Here, the petitioner failed to demonstrate that the NYCTA had actual knowledge of the essential facts constituting the claim within 90 days after its accrual or a reasonable time thereafter. Contrary to the petitioner's contention, the police report prepared by the TBTA, and the separate report prepared by the NYCTA, did not contain facts from which it can be readily inferred that a potentially actionable wrong had been committed by the NYCTA (see Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214–1215, 111 N.Y.S.3d 71 ; Matter of Perez v. City of New York, 175 A.D.3d 1534, 109 N.Y.S.3d 153 ; Casias v. City of New York, 39 A.D.3d 681, 683, 833 N.Y.S.2d 662 ). Accordingly, the reports did not provide the NYCTA with actual knowledge of the facts constituting the petitioner's claim that she sustained personal injuries as a result of the NYCTA's negligence (see Matter of Harding v. Yonkers Cent. Sch. Dist., 170 A.D.3d 725, 95 N.Y.S.3d 279 ; Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d 849, 850, 55 N.Y.S.3d 83 ; Peters–Heenpella v. Wynn, 105 A.D.3d 725, 726, 962 N.Y.S.2d 644 ; Matter of Harper v. City of New York, 69 A.D.3d 939, 940, 896 N.Y.S.2d 78 ).
Furthermore, contrary to the petitioner's contention, the no-fault claim form served upon the NYCTA was insufficient to satisfy the notice of claim requirement of General Municipal Law § 50–e (see Astree v. New York City Tr. Auth., 31 A.D.3d 589, 819 N.Y.S.2d 281 ; Lawrence v. Liberty Lines Tr., 299 A.D.2d 398, 750 N.Y.S.2d 102 ; Kossifos v. Liberty Lines Tr., 277 A.D.2d 205, 715 N.Y.S.2d 868 ; Zydyk v. New York City Tr. Auth., 151 A.D.2d 745, 745, 542 N.Y.S.2d 768 ).
In addition, the petitioner presented no "evidence or plausible argument" that her delay in serving a notice of claim did not substantially prejudice the NYCTA in defending on the merits ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Kelly v. City of New York, 153 A.D.3d 1388, 1390, 63 N.Y.S.3d 385 ). Nor did the petitioner demonstrate a reasonable excuse for her failure to serve a timely notice of claim (see Casey v. State of New York, 161 A.D.3d 720, 721, 76 N.Y.S.3d 600 ; Almedia v. State of New York, 70 A.D.2d 712, 713, 416 N.Y.S.2d 443 ; Brennan v. State of New York, 36 A.D.2d 569, 317 N.Y.S.2d 711 ).
The petitioner's remaining contentions are without merit.
Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim.
LASALLE, P.J., DUFFY, FORD and DOWLING, JJ., concur.