Respondents.

This is a petition for leave to serve a late notice of claim. For the reasons that follow, the petition is dismissed.

The petitioner alleges that on March 8, 1999, he was involved in an accident with a sanitation truck driven by the individual respondent. He did not seek the advice of counsel until June 14, 1999, after the ninety-day period for filing a notice of claim pursuant to General Municipal Law ' 50-e had expired. Counsel filed notices of claim, without court authorization, on June 23, 1999. The order to show cause on this proceeding was not filed with the court until August 17, 1999, and was not served until August 25, 1999.

Generally, a notice of claim must be served within 90 days after a claim arises (General Municipal Law '50-e[1][a]; Hilda B. v New York City Hous. Auth., 224 AD2d 304, 305; Matter of Ragland v New York City Hous. Auth., 201 AD2d 7, 9.). A late notice of claim served without leave of court is ineffective (Simons v Sherburne-Earlville Cent. School Dist., 233 AD2d 592; McSherry v Hawthorne School, 246 AD2d 517).

It is well established that A[t]he key factors in determining whether an application for leave to serve a late notice of claim should be granted are whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits" (Matter of Townsend v NYCHA, 194 AD2d 795; Matter of Amin v City of NY, 243 AD2d 467).

The petitioner offers no excuse for his failure to seek the advice of counsel promptly, or for the delay of more than two months in seeking leave to serve a late notice of claim after the initial, ineffective late filing.

As to notice, the fact that the accident was reported to the police, or that police officers responded to the scene and issued an accident report, cannot serve as notice to the Sanitation Department (Matter of Martinez v NYCHA, 250 AD2d 686). While the respondent driver presumably had notice of the accident, there is no indication on this record that he had any reason to believe that the petitioner was likely to make a claim based upon it. While the merit of the claim is ordinarily not a factor on a petition for leave to serve a late notice of claim (Fritsch v Westchester County Dept. of Transportation, 170 AD2d 602), it is appropriate to note that to the extent it illuminates the facts, the police report indicates that it was the petitioner who went through a stop sign. It offers no support for the assertion that the respondents had notice of the petitioner's intent to make a claim. It has long been held, in the words of Judge Cardozo, that A[w]hat satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the >claim= @ (Thomann v City of Rochester, 256 NY 165, 172; quoted by Parochial Bus Systems, Inc. v. Board of Education, 60 NY2d 539,548; Chattergoon v New York City Hous. Auth., 161 AD2d 141, aff=d 78 NY2d 958; Mondert v. New York City Transit Auth., 224 AD2d 500). That is, the municipality must have notice that the plaintiff intends to sue on the occurrence, not merely notice of the occurrence itself.

The petition also fails to establish the lack of prejudice to the respondent.

A short-form order embodying this decision has been signed herewith.

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                                                                                                                                       J.S.C.