STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. NEW YORK CITY TRANSIT AUTHORITY (2006)

In an action, inter alia, to recover for damage to property, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated April 3, 2006, which granted the plaintiff's application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5).

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the application is denied.

The Supreme Court improvidently exercised its discretion in granting the application for leave to serve a late notice of claim.   The plaintiff failed to demonstrate a reasonable excuse for its failure to timely serve a notice of claim.   The assertion that claim documents were timely served on the City of New York was insufficient to constitute a reasonable excuse (see Matter of Coyle v. New York City Tr. Auth., 283 App.Div. 1083, 131 N.Y.S.2d 502), and the five-month delay in moving for relief after discovery of the error was unreasonable (see Matter of Morris v. County of Suffolk, 58 N.Y.2d 767, 459 N.Y.S.2d 38, 445 N.E.2d 214).   The plaintiff's argument that the defendant New York City Transit Authority (hereinafter the NYCTA) was equitably estopped from denying timely receipt of a notice of claim is also unavailing (see Townley v. Emerson Elec. Co., 269 A.D.2d 753, 702 N.Y.S.2d 728;  Matter of Gross v. New York City Health & Hosps. Corp., 122 A.D.2d 793, 505 N.Y.S.2d 678;  Luka v. New York City Tr. Auth., 100 A.D.2d 323, 474 N.Y.S.2d 32, affd. 63 N.Y.2d 667, 479 N.Y.S.2d 524, 468 N.E.2d 706).

Moreover, the plaintiff failed to establish that the NYCTA acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter (see General Municipal Law § 50-e [5];  Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154).   The plaintiff's assertion that the NYCTA's employee must have prepared and filed an accident report was completely unsubstantiated (see Washington v. City of New York, 72 N.Y.2d 881, 532 N.Y.S.2d 361, 528 N.E.2d 513).   Similarly, the fact that a police accident report was prepared did not in and of itself constitute notice of the claim to the NYCTA (see Olivera v. City of New York, 270 A.D.2d 5, 704 N.Y.S.2d 42;  Matter of Dube v. City of New York, 158 A.D.2d 457, 551 N.Y.S.2d 50;  Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401;  cf. Miranda v. New York City Tr. Auth., 262 A.D.2d 199, 694 N.Y.S.2d 352;  Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573, 683 N.Y.S.2d 585).

Finally, although it is not necessary to reach the issue of prejudice in view of the foregoing (see Matter of Carpenter v. City of New York, 30 A.D.3d 594, 595-596, 817 N.Y.S.2d 155), the plaintiff, in any event, failed to demonstrate that the NYCTA was not prejudiced in its ability to investigate the accident and prepare a defense as a result of the substantial delay in providing notice of the essential facts of the claim (see Matter of Henriques v. City of New York, 22 A.D.3d 847, 803 N.Y.S.2d 194;  Alexander v. City of New York, 2 A.D.3d 332, 769 N.Y.S.2d 267).