### Williams v New York City Tr. Auth. 2024 NY Slip Op 31228(U) April 10, 2024 Supreme Court, New York County Docket Number: Index No. 154457/2023 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 33 INDEX NO. 154457/2023 RECEIVED NYSCEF: 04/10/2024 

## SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ Justice

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MATTHEWWILLIAMS Petitioner

- V - NEW YORK CITY TRANSITAUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY Respondents

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INDEX NO. 154457/2023 MOTION SEQ. NO. 001

DECISION AND ORDER ON MOTION

The following c-filed documents, listed by NYSCEF document number (Motion 001) 2, 13, 14, 15, 16, 17, 18, 19, 20,21, 22,23,24,25,26,27,28,29,30, 31,32 were read on this motion to/for EXTEND
- TIME Petitioner moves pursuantto General Municipal Law §50-e for an extension oftime to serve a late notice ofclaim upon Respondents and to deem a late notice ofclaim served 

### nunpro tune. Forthe
reasons that follow, the extension is granted butthe 

### nunpro tune reliefis denied. Pursuant to General Municipal Law §50-e, this Courthas discretion to grant or deny a timely application for an extension of time to serve a late notice of claim upon a public entity (General Municipal Law §50-c [5]; 

### Pierson v. 

### CityofNew York, 56 NY2d 950 ll992J). In makingsuchdecision this Court must give great weight to whether the public entity acquired actual notice ofthe essential facts ofthe claim within ninety (90) days after the date the claim arose ora reasonable time thereafter (General Municipal Law §50-e [5]; see 

### Pierson v. 

### City of New York_ 56 NY2d 950 [1992]; 

### Bertone Commissioning 

### v City of New York, 27 AD3d 222 l} st Dept 2006}; 

### Orozco 

### v City oflv'ew York, 200 A.D.Jd 559, 161 N.Y.S.Jd 1 [1st Dept 2021]) Other key factors to consider, include the reason why the Petitioner did not serve the prerequisite, required, and mandatory notice ofclaim within the 90-day window and whether granting

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the extension will substantially prejudice the public entity (General Municipal Law §50-e [5]; 

### see also Dubowy v. City of M:.w York, 305 AD2d 320 

### [Ist Dept 2003

## J; Porcaro v. City of New York, 20 AD3d 357[1st Dept2005]). Yetthe presence orabsence ofany one factor, exceptthe factor that Respondents had knowledge ofthe facts ofthe claim within ninety (90) days, is not detenninalive or fatal to these application 

### (see Dubowy,305 J\D2d 320; 

### Matter of Porcaro, 20 AD3d 357). What is paramount and necessary in deciding these applications is assuring that the public entitiescan fairly investigatea meritorious claim againstthem whilethe evidence is fresh and available 

### (see Porcaro, 20AD3d 357; 

### Orozco, 200 AD3d 559). 

### Reasonable Fxcuse Here, Petitioner alleges thatonJune 13, 2022, while operating his motorvehicle, he was struck by Respondents' bus near 107 East 125th Street in Manhattan. As a result, he alleges sustaining personal injury. Petitioner further alleges that on the date ofthe accident he obtained a police report and an MTA/NYC Transit accident exchange form. As the accident occurred on June 13, 2022, pursuant to General Municipal Law §50e, Petitionerhad approximately until September 11, 2022, to serve Respondents, or ninety (90) days after the datethe claim arose. Further since September 11, 2022, was a Sunday, Petitionerhad until Monday September 12, 2022 

### (see N.Y. Gen. Constr. Law§ 25-a). Yet Petitioner's counsel who was retained withinthe 90-day window and approximately within ten (10) days from the date the claim arose, on or about June 23, 2022, did not attempt to serve Respondents until October 13, 2022. Further, Petitioner's counsel did not move this Court until eleven (II) months afterthe claim arose onMay 16, 2023 when he filed the instant Petition. Petitioner's counsel argues that it did not know that the accident included Respondent's bus rather he believed the accident included another private vehicle. Petitioner's affidavit ofmerit further attests that he was concentrating on his medical treatment and did not know that a notice of

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claim was required. These arguments are unavailing. As ignorance ofthe law does not constitute a legitimate reason and the accident exchange form Petitioner received the date of the accident unequivocally states that it is from MTA/NYCTransit (see e.g. Rodriguezv. New York CityHealth & Hosps. Corp., 78 AD3d 538 [

### Ist Dept 201

### O]; see also Bell v. City of New York, 100 AD3d 990 l2d Dept 2012]). Accordingly,Petitionerhas notdemonstrateda reasonableexcuse forthedelay in serving the required notice ofclaim and the notice ofclaim served in October 22 is deemed a nullity as it was not served within the 90-day window and it was done without leave ofcourt (see General Municipal Law §50-e; McCartyv. City ofl\'ew York, 44 AD3d 447 [1 st Dept 2007); see also Wollin.s v. ,Vew York City 

### Bd. of Educ., 8 AD3d 30 [Ist Dept 2004]). Knowledge of the Claim andSubstantial Prejudice In support that Respondents had notice of the essential facts of Petitioner's claim, Petitioner submits police report and an MTA/ 

### NYC Transit accident exchange form. Petitioner's counsel also improperly in his reply papers submits photographs ofthe accident. The police report documents an accident between Petitioner's vehicle and Respondents' public bus. Notably the police reportdoes not make any references thatPetitionerreported any injuries orthatan ambulance or EMS
were present. The accident exchange form includesthe date ofthe accident, the insurance information for the bus driver and the address and phone number to the New York City's Transit's Legal Department. The photographs submitted show damage to Petitioner's vehicle by Respondent's bus. Upon review, a policereport alone is not always sufficient to infer a potential actionable wrong for personal injury (see e.g. Clarke v. Veolia Transportation Servs., Inc., 204 AD3d 66612d Dept 2022];Alexander v. ]\lew York City Transit Auth., 200 J\D3d 509 [1st Dept 2021

## J; Evans v. New York City Hous. Auth., 176 AD2d 22l[lstDept 1991]). However, here Respondent's vehicle is a large bus weighting many tons and the police report establishes, and it is undisputed by the drivers,

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that a collision occurred between Respondent's large bus and Petitioner's small vehicle. Thus in light ofthe police report, the photographs depicting more than minor damage to Petitioner's vehicle and Petitioner's affidavit attesting that an investigation by Respondents was conducted, this Court finds that Respondents had sufficient facts to infercommitting a potential actionable wrong for more thanjustproperty damagebut also for personal injury 

### (see e.g. lhomas

### v. City 

### o_f]Ve,v York, 118 AD3d 537 151Dept 2014; 

### see also l!ardingv Yonkers CentralSchoolDistrict, 95 NYS3d 279 [2nd Dept 20191). As to any substantial prejudiceto Respondents,thisCourtfurther finds that since Respondents had knowledge or the facts constituting potential personal injury claims, Respondents will not be substantially prejudiced by a late notice ofclaim as they maintain and operate the bus systems, have
access to the time, date and location orthe alleged aceident, the bus driver, the bus video recordings, and conducted an initial investigation while all the evidence was freshly available 

### (see 

### Malter o_f Orozco v City of,\Tew York, 200 AD3d 559 [1st Dept 202!"I). Accordingly, while this Court is not pleased with the delay by Petitioner's counsel and with his unprocedural sound reply submissions, this Court nonetheless finds that the Petitioner has a legitimate personal injury claim. 

### It further finds thatRespondents with its investigation the date ofthe accident and with the police report had knowledge to infer a potential personal injury wrong and will not be prejudiced in mounting a fair defense 

### (see Porcaro, 20 AD3d 357: 

### Orozco, 200 AD3d 559). 

### It is hereby ORDERED that this Petition seeking to serve a late notice orclaim upon the Respondents is granted; and it is further ORDERED that within 20 days from the entry ofthis order, Petitioner shall serve a copy of this order with notice ofentry upon all parties and the Clerk ofthe Court (60 Centre Street, Room

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### 1418) and the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119), 

### who are directed to mark the court's records; and it is further ORDERED that such service upon the Clerkofthe Courtand the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Proceduresfor Electronically Filed Cases (accessible at the "E-Filing'' page on the court's website).

4/10/2024



### DATE DEN~INGUEZ, J.S.C. CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT
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