Upon the foregoing papers, petitioner's application for leave to serve a late notice of claim (No. 2811) is granted, and respondent's cross motion to dismiss (No. 3226) is denied.

On June 21, 2006, at approximately 6:30 a.m., petitioner, a sanitation worker, was seriously injured while collecting recyclables when an empty wine bottle was forcibly ejected from the "hopper" of the truck being used, shattering and striking petitioner in the right cheek. It is undisputed that an accident report was filed on the same day and the matter was investigated by petitioner's supervisor (Petitioner's Exhibit "1"). Petitioner was subsequently taken to the Emergency Room at St. Vincent's Hospital, where he was treated and released with glass still lodged in his cheek. Petitioner remained out of work for six weeks. Approximately two months later, the glass was removed by a plastic surgeon, and petitioner was required to remain out of work for an additional six weeks. It is undisputed that all of petitioner's medical treatment was authorized by the Department of Sanitation medical clinic, which petitioner visited on several occasions.

According to petitioner, he was informed by his supervisor that the only way to redress his injury was to apply for a Line-of- Duty Injury Award. He further alleges that it was not until much later that a fellow worker suggested that he contact his union, whose attorneys advised him to file a notice of claim. He thereafter retained counsel, who commenced the within application by order to show cause on September 17, 2007, a mere ten days before the time within which to grant leave would have expired (see General Municipal Law § 50-e[5]).

As the Second Department has recently noted in Matter of Felice v Eastport/South Manor Cent. School Dist. (___ AD3d ___, 2008 NY Slip Op 00691), the seminal factor in determining the question of whether leave to file a late notice of claim should be granted is "whether the public [*2]corporation or its attorney . . acquired actual knowledge of the essential facts constituting the claim within the time specified in [General Municipal Law § 50-e] subdivision one [within 90 days after the claim arose] or within a reasonable time thereafter" (see General Municipal Law § 50-e[5]). In this regard, the Court reiterated a persistent theme, i.e., "that a public corporation's knowledge of the accident and the injury, without more, does not constitute 'actual knowledge of the essential facts constituting the claim', at least where the incident and injury do not necessarily occur only as a result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated . . . [but] not . . . specific notice of the theory or theories themselves" (Matter of Felice, ___ AD3d at ___ [citations omitted]).

Here, it is the opinion of this Court that respondent acquired the requisite notice on June 21, 2006, the date that the incident report was filed indicating that petitioner had been struck in the face by a wine bottle that was forcefully ejected from the truck's hopper "while cycling", an obvious reference to an alleged operating defect (Petitioner's Exhibit "1"). The report clearly indicates that the incident was investigated by petitioner's superior, and that the Department chose, for whatever reason, to conduct no further inquiry ^[FN1]. Moreover, it is uncontroverted that the Department was kept apprised of petitioner's condition and medical treatment through its clinic.

Contrary to respondent's suggestion, authority for this conclusion can be found in Matter of Cicio v City of New York (98 AD2d 38) and Matter of Somma v City of New York (81 AD2d 889), both of which attributed actual knowledge to the city through the filing of accident or incident reports with the Department of Sanitation (see Matter of Lucas v City of New York, 91 AD2d 637 [similar result obtained as to a police officer from the filing of a Police Department accident report]). Moreover, the ejection of collected refuse from the recycling truck's hopper plainly constitutes the type of injury that would not generally occur in the absence of some defect in the equipment, as suggested in the proposed notice of claim (see Matter of Felice, supra; Gibbs v City of New York, 22 AD3d 717 [Health and Hospitals Corporation charged with actual notice of the facts constituting plaintiff's claim of negligence under circumstances where her wheelchair allegedly slid forward under braking while she was being transported in an HHC ambulance]). Instructive in this regard, and particularly relevant to the absence of prejudice, is respondent's apparent concession "that the City was [already] taking action to investigate and/or remedy the ongoing problem with split hopper recycling trucks ("CM" series trucks)" (Reply Affirmation p 3, para 6).

Finally, insofar as respondent asserts prejudice based on the failure to identify the specific truck in petitioner's accident report, this Court sees no reason to doubt that the Department of Sanitation has always been well aware of its identity, and that petitioner should not be faulted as a result of the Department's failure to require such information in its accident reports. As for the purported insufficiency of the proposed notice of claim, it appears that any omission or defect has already been addressed in these proceedings, and that the proposed notice of claim may be deemed [*3]amended in those regards without prejudice to the City (see General Municipal Law § 50-e[6]).

The cases upon which respondent purports to rely are distinguishable on their facts.

In view of all of the foregoing, petitioner's lack of a reasonable excuse for filing a timely notice of claim does not warrant denial of the application (see Gibbs v City of New York, 22 AD3d at 720; Matter of Lucas v City of New York, 91 AD2d 637, supra).

Accordingly, it is

ORDERED that petitioner's application for leave to serve a late notice of claim is granted; and it is further

ORDERED that the proposed notice of claim annexed to the moving papers is deemed served; and it is further

ORDERED that respondent's cross motion to dismiss is denied.

The foregoing constitutes the Decision and Order of the Court.

DATED: FEB. 27, 2008/s/

HON. THOMAS P. ALIOTTA, J.S.C.