Upon the foregoing papers, the application by the Petitioner (incorrectly referred to as "Plaintiff" in the caption), NIKOLAS KOUGIANOS, seeking an Order, pursuant to General Municipal Law § 50-e (5), granting the Petitioner leave to serve a late Notice of Claim, is decided as hereinafter provided.

The Petitioner seeks leave to file and serve a late Notice of Claim upon the named [*2]Respondent, NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, to recover for personal injuries allegedly sustained on March 30, 2010. The Petitioner claims that he was caused to sustain severe personal injuries while operating his motor vehicle due to a pothole in the road, at or near the intersection of South Oyster Bay Road and Amby Avenue, County of Nassau, State of New York. Petitioner's counsel's Affirmation in Support states that the NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, their respective agents, servants and/or employees, were negligent, careless and reckless in the ownership, operation, inspection, supervision, maintenance, control and/or repair of the pothole, pavement and/or roadway where the Petitioner's accident occurred.

A Notice of Claim is a statutory device that creates a condition precedent to the right to bring an action. See, General Municipal Law § 50-e (3); § 50-i. Said Notice must be served "within a 90 days after the claim arises." General Municipal Law § 50-e (1) (a). This statutory precondition serves "to enable municipalities to pass upon the merits of a claim before the initiation of litigation and thereby forestall unnecessary lawsuits". Alford v. City of New York, 115 AD2d 420, 421 (1st Dept.1985), affirmed, 67 NY2d 1019 (1986). Thus, subdivision § 50-e (3) of the General Municipal Law (as distinguished from the requirements for permission to serve a late claim pursuant to § 50-e (5), (6) and (7), is strictly construed. As stated by the Court of Appeals:

"[W]e have long held, statutory requirements conditioning suit [against a governmental entity] must be strictly construed'. (Citations omitted). This is true even where the [municipality] had actual knowledge of the claim or failed to demonstrate actual prejudice. (Citations omitted.) We have repeatedly rejected ... proposals to compromise the strict statutory notice of claim requirement, because to do so would lead to uncertainty and vexatious disputes".

Varsity Transit v. Board of Education, 5 NY3d 532, 536 (2005).

It is noted at the outset that the proposed Notice of Claim, as annexed to the Petitioner's Notice of Petition as Exhibit "B", and the Notice of Petition, name as the Respondent the NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS. No other respondents are identified. The Petitioner also caused to be served upon the NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, the Notice of Claim, Notice of Petition and Request for Judicial Intervention. According to the Affidavits of Service submitted in support of the instant application, the Petitioner caused said documents to be served upon the purported Respondent by serving an authorized agent of said "corporation".

The NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS is not a legally cognizable entity. The purported Respondent herein is without legal existence independent of the County of Nassau, and, thus, is not a suable entity. There is currently no action or special proceeding pending against the County of Nassau. This Court apparently lacks jurisdiction as the Notice of Claim, Notice of Petition and Request for Judicial Intervention were served on an unidentifiable entity. As observed in Eso v. County of Westchester, 141 AD2d 542 (2d Dept.1988),

"Even if this motion were to be treated as a special proceeding, the respondent did not effectuate service in strict compliance with CPLR 403(c) and 311(4). In order to obtain [*3]jurisdiction over the County or the County Police, he was required to serve a county official designated under CPLR 311(4) by personal delivery of the papers to such an official (see, CPLR 403 [c] ).

Eso, 141 AD2d 542, 529. Pursuant to CPLR § 311, personal service upon the County of Nassau, a governmental subdivision, must be effectuated by serving the chair or clerk of the board of supervisors, clerk, attorney or treasurer of the County of Nassau. Given the strict application of the statute, this error by the Petitioner is not one that the Court may disregard or correct.

The Petitioner's application to file a late Notice of Claim would be denied notwithstanding the foregoing error. In making the determination of whether to permit the filing of a late Notice of Claim, the trial court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely Notice of Claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. Acosta v. City of New York, 39 AD3d 629 (2d Dept. 2007). The knowledge of the public corporation of the happening of the event is of great importance when making a determination to grant leave. Alexander v. Board of Education, 18 AD3d 654 (2d Dept. 2005).

In the instant matter, the Petitioner's counsel claims that the Police Accident Report submitted in support of the Petition, imposes the requisite knowledge upon the municipality. Counsel's argument is erroneous in that it has long been held that accident reports are insufficient to satisfy the knowledge requirement in the statute. "To adopt plaintiff's position that such circumstances gave defendant timely actual notice of the facts constituting his claim would be to substitute police reports for notices of claim in every instance, mandate that defendant investigate every possible cause of action that might be suggested in an accident report [and] disregard the prejudice caused by the lost opportunity to conduct a prompt investigation ..." Olivera v. City of New York, 270 AD2d 5 (1st Dept.2000); See also, Walker v. NYC Transit Authority, 266 AD2d 54 (1st Dept.1999) (police "aided" report did not connect the occurrence with any negligence by Defendants, and thus did not constitute notice).

The Petitioner also failed to set forth a reasonable excuse for the delay. The Petitioner's counsel claims that it timely served the Town of Babylon with a Notice of Claim and was subsequently informed that the road on which the accident occurred was not within the Town of Babylon's jurisdiction. Two months after being informed of the misidentification, the Petitioner caused the Notice of Claim to be served upon the purported Respondent, NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, a non-suable entity. While misidentifying a defendant may in some circumstances be a reasonable excuse, the Court declines to accept that the delay is excusable in this instance. See National Surety Corp. v. Town of Greenburgh, 266 AD2d 550 (2nd Dept. 1999).

Accordingly, it is hereby

ORDERED, that the application by the Petitioner, NIKOLAS KOUGIANOS, seeking an Order, pursuant to General Municipal Law § 50-e (5), granting the Petitioner leave to serve a late Notice of Claim, is DENIED.

The Petitioner's remaining contentions are without merit. [*4]

This constitutes the decision and order of the Court.

DATED:Mineola, New York

April 5, 2011

______________________________

Hon. Randy Sue Marber, J.S.C.

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