ASTREE v. NEW YORK CITY TRANSIT AUTHORITY (2006)

Appeal by the New York City Transit Authority from an order of the Supreme Court, Queens County (Taylor, J.), dated May 9, 2005, which granted the application of Veronique Astree pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

ORDERED that the order is reversed, on the law 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 since the New York City Transit Authority (hereinafter the NYCTA) did not acquire actual knowledge of the essential facts constituting the claim (see Matter of Sica v. Board of Educ. of the City of N.Y., 226 A.D.2d 542, 543, 640 N.Y.S.2d 610), within 90 days after the claim arose or a reasonable time thereafter (see General Municipal Law § 50-e[5];  Pappalardo v. City of New York, 2 A.D.3d 699, 699, 768 N.Y.S.2d 660;  Matter of Jasinski v. HB Ward Tech. School, 306 A.D.2d 347, 347, 760 N.Y.S.2d 676).   Contrary to the contention of Veronique Astree, her application for no-fault benefits, made within 90 days of the incident, did not satisfy the statutory notice of claim requirement (see General Municipal Law § 50-e[1][a];  Lawrence v. Liberty Lines Tr., 299 A.D.2d 398, 398-399, 750 N.Y.S.2d 102;  Kossifos v. Liberty Lines Tr., 277 A.D.2d 205, 205, 715 N.Y.S.2d 868;  Delisca v. Liberty Lines Tr., 272 A.D.2d 291, 292, 707 N.Y.S.2d 886;  Zydyk v. New York City Tr. Auth., 151 A.D.2d 745, 746, 542 N.Y.S.2d 768).   In addition, Astree's alleged inability to speak English (see Matter of Landa v. City of New York, 252 A.D.2d 525, 526, 675 N.Y.S.2d 377;  Taverna v. City of New York, 166 A.D.2d 314, 315, 560 N.Y.S.2d 775), her lack of knowledge of the notice of claim requirement under General Municipal Law § 50-e (see Matter of Landa v. City of New York, supra ), and her claim of law office failure (see Matter of King v. New York City Hous. Auth., 274 A.D.2d 482, 483, 711 N.Y.S.2d 33) did not constitute reasonable excuses for failure to timely serve a notice of claim (see General Municipal Law § 50-e[5];  Pappalardo v. City of New York, supra;  Matter of Jasinski v. HB Ward Tech. School, supra ).

Moreover, Astree's inexcusable delay in seeking to serve a notice of claim prejudiced the NYCTA's ability to maintain a defense (see Matter of Henriques v. City of New York, 22 A.D.3d 847, 848, 803 N.Y.S.2d 194;  Pappalardo v. City of New York, supra at 700, 768 N.Y.S.2d 660;  Saafir v. Metro-North Commuter R.R. Co., 260 A.D.2d 462, 463, 688 N.Y.S.2d 224;  Gilliam v. City of New York, 250 A.D.2d 680, 681, 673 N.Y.S.2d 172), since the NYCTA was prevented from engaging in a prompt investigation (see Gilliam v. City of New York, supra ).