Marder, Eskesen & Nass, New York, N.Y. (Clifford D. Gabel of counsel), for appellants.
Wallace D. Gossett (Steven S. Efron, New York, N.Y., of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve 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 of an action sounding in tort against the New York City Transit Authority (hereinafter the NYCTA) (see General Municipal Law § 50-e[a]; Public Authorities Law § 1212; Matter of Groves v New York City Tr. Auth., 44 A.D.3d 856; Small v New York City Tr. Auth., 14 A.D.3d 690, 691). In determining whether to extend the time to serve a notice of claim, the court will consider whether, in particular, 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, whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e; Matter of Abramovitz v City of New York, 99 A.D.3d 1000, 1000-1001; Matter of Groves v New York City Tr. Auth., 44 A.D.3d at 856-857; Matter of White v New York City Hous. Auth., 38 A.D.3d 675).
Here, the petitioners failed to demonstrate a reasonable excuse for the five-month delay after the expiration of the 90-day statutory period in serving the petition and proposed notice of claim. The injured petitioner's assertion that he did not immediately appreciate the nature and severity of his injuries until approximately five months after the subject accident is unavailing without supporting medical evidence explaining why the severity of the injuries took so long to become apparent and to be diagnosed (see Matter of Walker v Riverhead Cent. Sch. Dist., 107 A.D.3d 727; Matter of Minkowicz v City of New York, 100 A.D.3d 1000; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 151). The injured petitioner also failed to proffer any excuse for the further three-month delay between the time that he retained his attorneys and the time that he served the notice of claim (see Matter of Grant v Nassau County Indus. Dev. Agency, 60 A.D.3d 946, 947; Matter of Gillum v County of Nassau, 284 A.D.2d 533; Matter of McAllister v County of Nassau, 202 A.D.2d 670, 671).
Further, the petitioners failed to demonstrate that the NYCTA acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. The police accident report prepared by the responding police officer at the scene of the subject vehicular accident did not provide the NYCTA with actual knowledge of the injured petitioner's accident and injury, or that a potentially actionable wrong had been committed by the NYCTA against the injured petitioner (see Matter of Abramovitz v City of New York, 99 A.D.3d at 1001; Matter of Khalid v City of New York, 91 A.D.3d 779, 780; Matter of Taylor v County of Suffolk, 90 A.D.3d 769, 770). Furthermore, the motor vehicle accident report prepared by the injured petitioner 16 days after the accident and filed with the New York State Department of Motor Vehicles (hereinafter the DMV) did not provide the NYCTA with timely, actual knowledge of the petitioners' claim. The fact that the DMV had knowledge of the injured petitioner's accident, without more, cannot be considered actual knowledge by the NYCTA regarding the essential facts constituting the claim against it (see Matter of Walker v Riverhead Cent. Sch. Dist., 107 A.D.3d at 727; Matter of Klass v City of New York, 103 A.D.3d 800, 801; Matter of Martinez v New York City Hous. Auth., 250 A.D.2d 686, 687).
Moreover, the petitioners offered no evidence to rebut the NYCTA's contention that the delay had deprived it of the opportunity to find and interview witnesses promptly, or otherwise conduct a timely and meaningful investigation of the claim (see Godfrey v City of New Rochelle, 74 A.D.3d 1018, 1019; Matter of Lorseille v New York City Hous. Auth., 295 A.D.2d 612; Matter of DiBella v City of New York, 234 A.D.2d 366, 367).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to ...