Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian
J. Issac of counsel), for appellants.
Landman Corsi Ballaine & Ford P.C., New York (William G.
Ballaine of counsel), for respondents.
Friedman, J.P., Gische, Kapnick, Kahn, Moulton, JJ.
Supreme Court, New York County (Michael D. Stallman, J.),
entered August 11, 2016, which denied the petition for leave
to serve late notices of claim, and order, same court and
Justice, entered November 25, 2016, which, in effect, granted
petitioners' motion for reargument and adhered to the
original determination, unanimously affirmed, without costs.
notice of claim requirement does not apply to respondent
Metropolitan Transportation Authority's (the MTA)
subsidiaries, which include respondents MTA Capital
Construction Company (MTA Capital) and Long Island Rail Road
(see Public Authorities Law §§
1265-b[a]; 1276; Stampf v Metropolitan Transp.
Auth., 57 A.D.3d 222');">57 A.D.3d 222 [1st Dept 2008]). A suit against
these entities must be preceded by a demand for payment of
damages and a period of at least 30 days without adjustment
or payment (see Public Authorities Law §
1276, ; Andersen v Long Is. R.R., 59 N.Y.2d
appeal, petitioners argue that MTA Capital's possession
of an incident report prepared by the injured
petitioner's employer - the general contractor on the
MTA's construction project - establishes that it had
actual knowledge of the essential facts constituting the
claims within 90 days after they arose or a reasonable time
thereafter (see General Municipal Law §
50-e; Johnson v New York City Tr. Auth., 278
A.D.2d 83 [1st Dept 2000]. However, it is not clear from the
record when MTA Capital came into possession of this report
(see Velazquez v City of N.Y. Health & Hosps. Corp.
[Jacobi Med. Ctr.], 69 A.D.3d 441');">69 A.D.3d 441 [1st Dept 2010],
lv denied 15 N.Y.3d 711');">15 N.Y.3d 711 ).
event, MTA Capital's knowledge of the incident would not
be imputed to respondents the MTA, New York City Transit
Authority, or the City of New York. Although MTA Capital is a
subsidiary of the MTA, it is a distinct legal entity for
purposes of suit, and its employees "shall not be deemed
employees of [the MTA]" (see Public Authorities
Law §§ 1266; 1265-b[a]; see also
Stampf, 57 A.D.3d at 223; Noonan v Long Is.
R.R., 158 A.D.2d 392');">158 A.D.2d 392 [1st Dept 1990]). Petitioners have
not demonstrated that the MTA exercises the level of control
over MTA Capital necessary to create an agency relationship
(see Quik Park W. 57 LLC v Bridgewater Operating
Corp., 148 A.D.3d 444');">148 A.D.3d 444 [1st Dept 2017]).
Capital's connection to respondent New York City Transit
Authority is even more remote (see Public
Authorities Law §§ 1201; 1263; 1265-b[a];
Konner v New York City Tr. Auth., 143 A.D.3d 774,
776 [2d Dept 2016]), and its connection to the City is
fact that respondents share the same attorney does not alter
this analysis. In the cases cited by petitioners, the shared
attorneys were aware of the facts constituting the claims
from the outset because they were already actively
representing a related entity in connection with virtually
identical claims (see Matter of Fox v New York City Dept.
of Educ., 124 A.D.3d 887');">124 A.D.3d 887 [2d Dept 2015]; Matter of
Billman v Town of Deerpark, 73 A.D.3d 1039');">73 A.D.3d 1039 [2d Dept
2010]). In this case, the suit was commenced against all
respondents at the same time.
of the foregoing, petitioners failed to demonstrate that
respondents were not substantially prejudiced by the delay
see Matter of Newcomb v Middle ...