Opinion
13271N, 157598/12.
10-21-2014
In re Richard STROHMEIER, et al., Petitioners–Respondents, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Respondents–Appellants.
Fabiani Cohen & Hall, LLP, New York (Antonino Lugara of counsel), for appellants. Diamond and Diamond, LLC, New York (Stuart Diamond of counsel), for respondents.
Fabiani Cohen & Hall, LLP, New York (Antonino Lugara of counsel), for appellants.
Diamond and Diamond, LLC, New York (Stuart Diamond of counsel), for respondents.
Opinion
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 16, 2013, which, to the extent appealed from as limited by the briefs, granted petitioners' motion for leave to serve a late notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied. The Clerk is directed to enter judgment dismissing the complaint.
The court improvidently exercised its discretion in granting petitioners' motion. While petitioners' failure to proffer any excuse for the delay in serving a notice of claim is not alone fatal to their motion (see Matter of Semyonova v. New York City Hous. Auth., 15 A.D.3d 181, 182, 789 N.Y.S.2d 38 [1st Dept.2005] ), they also failed to demonstrate the absence of prejudice, or that respondents or respondents' insurance carrier acquired actual notice of the essential facts constituting the claim within 90 days after the claim arose (see id. ). Petitioners' workers' compensation documents did not give respondents' insurance carrier actual knowledge of the claim, as the documents do not set forth essential facts constituting the claim, such as the correct borough, the location and cause of the accident (see Matter of Brennan v. Metropolitan Transp. Auth., 110 A.D.3d 437, 437, 972 N.Y.S.2d 238 [1st Dept.2013] ; Alexander v. City of New York, 2 A.D.3d 332, 769 N.Y.S.2d 267 [1st Dept.2003] ; and see Matter of Casale v. City of New York, 95 A.D.3d 744, 745, 945 N.Y.S.2d 92 [1st Dept.2012] ). Since there is no reasonable excuse for the delay, and respondents did not acquire actual knowledge of the essential facts within the 90–day period, or a reasonable time thereafter, the alleged transitory nature of the defective condition weighs against granting petitioners' application (see McClatchie v. City of New York, 105 A.D.3d 467, 468, 963 N.Y.S.2d 87 [1st Dept.2013] ). Further, the delay prejudiced respondents' ability to search for witnesses to the accident and related circumstances (see Harris v. City of New York, 297 A.D.2d 473, 474, 747 N.Y.S.2d 4 [1st Dept.2002], lv. denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002] ).
TOM, J.P., RENWICK, MOSKOWITZ, RICHTER, KAPNICK, JJ., concur.