IN RE: NATIONAL GRANGE MUTUAL INSURANCE COMPANY (2008)

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5), the appeal is from an order of the Supreme Court, Westchester County (Loehr, J.), entered May 15, 2007, which granted the petition.

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

Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality (see General Municipal Law § 50–e[1][a];  Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61, 484 N.Y.S.2d 533, 473 N.E.2d 761;  O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158).  In deciding whether to permit service of a late notice of claim, the court will consider whether the municipality acquired actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the petitioner has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the municipality in its defense on the merits (see General Municipal Law § 50–e[5];  Matter of White v. New York City Hous. Auth., 38 A.D.3d 675, 831 N.Y.S.2d 515;  Matter of James v. City of NY. Dept. of Envtl. Protection, 37 A.D.3d 832, 830 N.Y.S.2d 593;  Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d 920, 921, 829 N.Y.S.2d 578).

 The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim.  The Town of Eastchester (hereinafter the Town) did not receive actual notice or acquire knowledge of the essential facts constituting the claim asserted by the petitioner within 90 days after the accident or a reasonable time thereafter (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Matter of James v. City of N.Y. Dept. of Envtl. Protection, 37 A.D.3d 832, 830 N.Y.S.2d 593;  Matter of Padovano v. Massapequa Union Free School Dist., 31 A.D.3d 563, 818 N.Y.S.2d 274).  The fact that the Eastchester Police Department had knowledge of this accident, which occurred in the Town of Bronxville (hereinafter Bronxville), is insufficient to impute knowledge of the accident to the Town (see Matter of Vitali v. City of New York, 205 A.D.2d 636, 613 N.Y.S.2d 270;  Matter of Russ v. New York City Hous. Auth., 198 A.D.2d 361, 362, 603 N.Y.S.2d 338;  Matter of Perry v. City of New York, 133 A.D.2d 692, 693, 519 N.Y.S.2d 862;  Caselli v. City of New York, 105 A.D.2d 251, 255–256, 483 N.Y.S.2d 401).  Furthermore, the police accident report and the Bronxville Police Department call report failed to provide actual knowledge of the facts constituting the petitioner's claim that its subrogor's vehicle was damaged as a result of the Town's negligence (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 837 N.Y.S.2d 330;  Matter of James v. City of N.Y. Dept. of Envtl. Protection, 37 A.D.3d at 833, 830 N.Y.S.2d 593;  Matter of Finneran v. City of New York, 228 A.D.2d 596, 597, 644 N.Y.S.2d 537).  The petitioner's further assertion that the Town's employee must have reported the accident to his superiors was completely unsubstantiated (see Washington v. City of New York, 72 N.Y.2d 881, 883, 532 N.Y.S.2d 361, 528 N.E.2d 513;  State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 828 N.Y.S.2d 416).  In addition, the petitioner failed to provide any excuse for its lengthy delay in bringing the proceeding.

It is unnecessary to reach the issue of prejudice to the Town, since the petition should have been denied due to the lack of timely actual knowledge of the facts constituting the claim and the petitioner's lack of a reasonable excuse for the delay in bringing the proceeding (see Hebbard v. Carpenter, 37 A.D.3d 538, 541, 830 N.Y.S.2d 270;  Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759–760, 820 N.Y.S.2d 81;  Matter of Carpenter v. City of New York, 30 A.D.3d 594, 596, 817 N.Y.S.2d 155).