IN RE: Ralph DUBUCHE (2024)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered on or about September 14, 2023, which granted petitioner's motion for leave to serve a late notice of claim on respondents New York City Transit Authority (N.Y.CTA), MABSTOA, MTA, MTA Bus Company, and Harold Smith (collectively, respondents), and order, same court and Justice, entered on or about March 26, 2024, which, upon reargument, adhered to its prior determination, unanimously affirmed, without costs.

Contrary to petitioner's contention, respondents’ record on appeal complies with CPLR 2214(c) and provides no basis for dismissing the appeal.

On the merits, we conclude that Supreme Court providently exercised its discretion in granting petitioner leave to file a late notice of claim on respondents and, on reconsideration, denying their motion to reargue.

Petitioner submitted evidence demonstrating that respondents MTA and NYCTA received actual knowledge of the essential facts giving rise to his claim within 90 days of the accident or a reasonable time thereafter.  The evidence showed that, within that period, petitioner's prior law firm communicated directly with an MTA employee concerning his claim and sent a copy of the police accident report to the MTA employee, who later informed counsel that the police report had been forwarded to “NYCT Claims for handling.”  The police report sets forth the date, time and place of the alleged accident, identifies one of the vehicles as an MTA bus driven by respondent bus driver, and includes petitioner's statement that the bus had rear-ended his vehicle.  It further indicates that the airbags in petitioner's vehicle deployed, he sustained an injury to his shoulder, and an ambulance brought him to Harlem Hospital following the accident.  The police report thus sufficiently apprised respondents of petitioner's claim that he sustained injuries as a result of respondent bus driver's negligence in operation of the bus (see Matter of Gerzel v. City of New York, 117 A.D.2d 549, 551, 499 N.Y.S.2d 60 [1st Dept. 1986];  Matter of Toro v. New York City Hous. Auth., 182 A.D.2d 358, 358, 582 N.Y.S.2d 118 [1st Dept. 1992]).  “Where the facts upon which the municipality's liability is predicated are discernable from the report of an accident, actual knowledge will be imputed to the municipality” (Matter of Soto v. New York City Hous. Auth., 180 A.D.2d 570, 571, 580 N.Y.S.2d 272 [1st Dept. 1992]).

Although the emails and the police report were not submitted with petitioner's moving papers, the court properly considered them because they had been electronically filed previously in a prior proceeding and were properly referred to by petitioner, giving the docket numbers on the e-filing system (CPLR 2214[c]).  In addition, the court had discretion to consider the documents because they were annexed to petitioner's reply papers and they were electronically filed and readily available to the court and both parties (see 225 ADC Realty Corp. v. Popular Jewelry Corp., 222 A.D.3d 510, 510, 202 N.Y.S.3d 75 [1st Dept. 2023];  Pandian v. New York Health & Hosps. Corp., 54 A.D.3d 590, 591, 863 N.Y.S.2d 668 [1st Dept. 2008];  CPLR 2001).  Respondents’ evidentiary objection to the documents showing that NYCTA received the police report is not preserved for appellate review (see A & W Egg Co., Inc. v. Tufo's Wholesale Dairy, Inc., 169 A.D.3d 616, 617, 95 N.Y.S.3d 72 [1st Dept. 2019]).

Petitioner's evidence showing that respondents had actual notice of the facts constituting the claim within 90 days of the accident or a reasonable time thereafter also provides a “plausible argument” that respondents will not be substantially prejudiced in investigating and defending the claim (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 [2016]).  The burden having shifted, respondents’ conclusory assertions of prejudice, based solely on the delay in serving the notice of claim, are insufficient (see id. at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714;  Matter of Lopez v. City of New York, 103 A.D.3d 567, 568, 959 N.Y.S.2d 694 [1st Dept. 2013]).

Petitioner's excuse of law office failure arising from his prior counsel attempting to file a notice of claim against the wrong party is not a reasonable excuse for failing to timely serve a notice of claim upon respondents (see Colarossi v. City of New York, 118 A.D.3d 612, 612, 989 N.Y.S.2d 24 [1st Dept. 2014]).  However, the absence of a reasonable excuse is not, standing alone, fatal to the application, given that respondents had actual notice of the essential facts constituting petitioner's claim and were not prejudiced by the delay (see Clarke v. New York City Tr. Auth., 222 A.D.3d 552, 553, 202 N.Y.S.3d 89 [1st Dept. 2023];  Matter of Dominguez v. City Univ. of N.Y., 166 A.D.3d 540, 541, 88 N.Y.S.3d 19 [1st Dept. 2018]).

Respondents’ newly raised argument that the court erred in granting petitioner leave because the proposed notice annexed to his application was not verified, and thus, defective, is unpreserved for review and, in any event, is misplaced because a failure to verify the notice of claim may be “excused or corrected” (Gass v. Hahn, 98 A.D.2d 741, 742, 469 N.Y.S.2d 445 [2d Dept. 1983]).

We have considered respondents’ remaining contentions and find them unavailing.