IN RE: John P. MOLLOY (2006)

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e, the City of New York and the New York City Transit Authority appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated April 22, 2005, which granted the petition.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the petition which was for leave to serve a late notice of claim against the City of New York and substituting therefor a provision denying that branch of the petition;  as so modified, the order is affirmed, with one bill of costs payable by the petitioner to the City of New York, and one bill of costs payable by the New York City Transit Authority to the petitioner.

 To commence a tort action against a municipality, a claimant must serve a notice of claim within 90 days of the alleged injury (see General Municipal Law § 50-e[1][a];  Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154).   Pursuant to General Municipal Law § 50-e(5), the court may, in its discretion, extend the time to serve a notice of claim (see Williams v. Nassau County Med. Ctr., supra;  Matter of Hicks v. City of New York, 8 A.D.3d 566, 778 N.Y.S.2d 725).   In determining whether to permit service of a late notice of claim, the court must consider all of the circumstances, including whether (1) the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e[5];  Matter of Hicks v. City of New York, supra at 566-567, 778 N.Y.S.2d 725;  Matter of Fierro v. City of New York, 271 A.D.2d 608, 609, 706 N.Y.S.2d 451;  Matter of Gaffney v. Town of Hempstead, 226 A.D.2d 721, 722, 641 N.Y.S.2d 709).

The petitioner correctly concedes that the City of New York is not a proper party and no longer challenges the right of the City of New York to relief on this appeal.

 With respect to the New York City Transit Authority (hereinafter the Transit Authority), based upon the circumstances of this case, including the minimal delay in serving the notice of claim and the lack of substantial prejudice to the Transit Authority, the Supreme Court providently exercised its discretion in granting that branch of the petition (see Matter of Morales v. New York City Tr. Auth., 15 A.D.3d 580, 790 N.Y.S.2d 212;  Matter of Cox v. City of Peekskill, 297 A.D.2d 735, 736, 747 N.Y.S.2d 547;  Matter of Castellano v. New York City Hous. Auth., 212 A.D.2d 606, 622 N.Y.S.2d 546;  Matter of Irizarry v. City of Yonkers, 193 A.D.2d 746, 597 N.Y.S.2d 729;  Rosenblatt v. City of New York, 160 A.D.2d 927, 928, 554 N.Y.S.2d 800).