Matter of Strohmeier v. Metropolitan Transp. Auth. , 993 N.Y.S.2d 888 ( 2014 )

Matter of Strohmeier v Metropolitan Transp. Auth. (2014 NY Slip Op 07109)

Matter of Strohmeier v Metropolitan Transp. Auth.

2014 NY Slip Op 07109

Decided on October 21, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 21, 2014
Tom, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.

13271N 157598/12

[*1] In re Richard Strohmeier, et al., Petitioners-Respondents, —

v

Metropolitan Transportation Authority, et al., Respondents-Appellants.

Fabiani Cohen & Hall, LLP, New York (Antonino Lugara of counsel), for appellants.

Diamond and Diamond, LLC, New York (Stuart Diamond of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 16, 2013, which, to the extent appealed from as limited by the briefs, granted petitioners' motion for leave to serve a late notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied. The Clerk is directed to enter judgment dismissing the complaint.

The court improvidently exercised its discretion in granting petitioners' motion. While petitioners' failure to proffer any excuse for the delay in serving a notice of claim is not alone fatal to their motion (see Matter of Semyonova v New York City Hous. Auth., 15 AD3d 181, 182 [1st Dept 2005]), they also failed to demonstrate the absence of prejudice, or that respondents or respondents' insurance carrier acquired actual notice of the essential facts constituting the claim within 90 days after the claim arose (see id.). Petitioners' workers' compensation documents did not give respondents' insurance carrier actual knowledge of the claim, as the documents do not set forth essential facts constituting the claim, such as the correct borough, the location and cause of the accident (see Matter of Brennan v Metropolitan Transp. Auth., 110 AD3d 437, 437 [1st Dept 2013]; Alexander v City of New York, 2 AD3d 332 [1st Dept 2003]; and see Matter of Casale v City of New York, 95 AD3d 744, 745 [1st Dept 2012]). Since there is no reasonable excuse for the delay, and respondents did not acquire actual knowledge of the essential facts within the 90-day period, or a reasonable time thereafter, the alleged transitory nature of the defective condition weighs against granting petitioners' application (see McClatchie v City of New York, 105 AD3d 467, 468 [1st Dept 2013]). Further, the delay prejudiced respondents' [*2]ability to search for witnesses to the accident and related circumstances (see Harris v City of New York, 297 AD2d 473, 474 [1st Dept 2002], lv denied 99 NY2d 503 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 21, 2014

CLERK