The following papers numbered 1 to 13 were read on this motion by the petitioner, LIDIA BAEZ, for an order pursuant to General Municipal Law § 50-e(5), to deem her notice of claim timely served nunc pro tunc or in the alternative, for leave to serve a late notice of claim pursuant to Public Authorities Law § 1276(2):

Papers

Numbered

Order to Show Cause-Affirmation-Exhibits.............1 - 5

Affirmation in Opposition-Exhibits...................6 - 10

Reply Affirmation...................................11 - 13

Petitioner seeks to commence a negligence action against THE MTA BUS COMPANY. Petitioner alleges that she sustained personal injuries on June 26, 2013 as she was boarding Bus No. 9022 on the Q53 line at Liberty Avenue and Cross Bay Boulevard, Queens County, New York. Petitioner alleges that the bus driver operated the bus in a negligent manner when he closed the doors on her. The police responded to the scene and prepared an Aided Report which states that the petitioner was taken by ambulance to Jamaica Hospital Medical Center and was diagnosed with a contusion of the hand and head. The petitioner claims that because the police Aided Report identifies the agency involved as NYC Transit Authority, the petitioner incorrectly filed a Notice of Claim with the New York City Transit Authority on August 22, 2013. On June 28, 2013, two days after the accident, petitioner's treatment facility served the MTA Bus Company with a request for no-fault benefits which included the date, time and place of the accident as well as a description of the petitioner's injuries.

On November 27, 2013, plaintiff's counsel wrote to the MTA Bus Company advising that plaintiff sustained injuries in an accident on a Q53 bus at Rockaway Boulevard and Cross Bay Boulevard and seeking a claim number. On February 20, 2014, the respondent sent the petitioner a notice for a statutory 50-H hearing which went forward on March 12, 2014.

Petitioner now seeks leave to deem the notice of claim served with the order to show cause on March 13, 2014 timely filed, nunc pro tunc.

Petitioner contends that the application for leave to file a late notice of claim, served nine months after the accident, should be granted because the MTA Bus Company will not be prejudiced by the delay. Petitioner asserts that the MTA was on notice of the accident within the 90 day period based upon the no-fault application which was filed two days after the accident and establishes that the MTA had notice of the plaintiff's accident within two days after the occurrence (citing Santiago v Liberty Lines Transit, Inc., 259 AD2d 362 [1st Dept. 1999] Miller v Liberty Lines, 208 AD2d 454 [1st Dept. 1994]).

Counsel also claims that the failure to serve the MTA with a notice of claim within 90 days was unintentional and resulted in no demonstrable prejudice to the respondent (citing Matter of March v Town of Wappinger, 29 AD3d 998 [2d Dept. 2006] DeMolfetto v City of New York, 216 AD2d 295 [2d Dept. 1995]).

In opposition, the MTA claims that the petitioner failed to file a Notice of Claim within the 90 day period as required by Public Authorities Law § 1276 prior to commencing an action against the Metropolitan Transit Authority. In addition, the MTA contends that service of a claim for no-fault benefits made within 90 days of the incident does not satisfy the statutory notice of claim requirement (citing Astree v New York City Tr. Auth., 31 AD3d 589 [2d Dept. 2006]). Further, counsel claims that the no-fault application does not provide the bus number, bus route or operator information. Respondent asserts also that the petitioner did not report the incident to the MTA on the date of the incident and therefore the MTA had no notice of any negligence on [*2]its part and had insufficient information to provide a basis to conduct an investigation.

The MTA states that it was not until November 27, 2013, five months after the accident, that counsel for petitioner sent correspondence to the MTA alleging that the petitioner was injured on June 26 2012 on a Q53 bus at Rockaway Boulevard and Cross Bay Boulevard. Respondent claims however, that the letter does not make reference to any acts of negligence on the part of the MTA Bus Company or describe how the petitioner sustained her alleged injuries. Thus, respondent claims that it had no information prior to November 2012 with which to make an investigation. Respondent states that it was not until nine months post-accident that the petitioner moved by order to show cause for leave to file a late notice of claim without providing any excuse for the delay and that the delay has prejudiced the MTA's ability to maintain a defense in that it was prevented from engaging in a prompt investigation (citing Matter of Henriques v. City of New York, 22 AD3d 847 [2d Dept. 2005] Pappalardo v City of New York, 2 AD3d 699[2d Dept. 2003]).

The respondent also asserts that the fact that a notice of claim was filed in a timely manner on the NYC Transit Authority is of no moment since it is a separate and distinct Public Authority from the MTA Bus Company and notice to one does not serve as notice to the other. Lastly, the respondent states that the petitioner has failed to explain why, when the no-fault benefits claim was submitted to the MTA Bus Company on June 28, 2013, the petitioner failed to file a timely notice of claim and moreover, waited nine additional months to seek to file a late notice of claim.

In reply, petitioner claims that the MTA has not been prejudiced as it held a statutory hearing on March 12, 2014 at which time petitioner was questioned as to the facts regarding the occurrence.

Upon review and consideration of the petition, respondent's affirmation in opposition and petitioner's reply thereto this Court finds as follows:

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in negligence against the MTA (see Public Authorities Law § 1276[2]). The Court may, however, extend the time to serve a notice of claim pursuant to General Municipal Law § 50-e(1)(a);(5). In determining whether to grant leave to serve a late notice of claim, the court must consider several factors including (1) whether there is a reasonable excuse for the delay, (2) whether the public corporation acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter, and (3) whether the late service would result in substantial prejudice to the public corporation defending on the merits (see General Municipal Law § 50-e[5] Matter of Rodriguez v Woodhull Sch., 105 AD3d 1050 [2d Dept. 2013] Arias v New York City Health & Hosps. Corp., 50 AD3d 830 [2d Dept. 2008] Matter of Henriques v City of New York, 22 AD3d 847[2005]). [*3]

In the instant action, this Court finds that the petitioner mistakenly filed a notice of claim with the New York City Transit Authority based upon the information contained in the Police Aided Report. However, notice to the Transit Authority does not satisfy the requirement that service of a notice of claim must be filed on the MTA. The plaintiff's failure to serve the proper entity that owned the bus in the first instance was not an acceptable excuse (see Matter of Placido v County of Orange, 112 AD3d 722 [2d Dept. 2013] Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d 404 [2d Dept. 2007]).

Further, there is no indication in the record that the respondent had actual knowledge of the facts essential to the claim within 90 days of the accident or a reasonable time thereafter. "What satisfies the statute is not knowledge of the wrong but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed" Matter of Henriques v City of New York, 22 AD3d 847[2d Dept. 2005])citing Matter of Sica v Board of Educ. of City of NY, 226 AD2d 542 [2d Dept. 1996] also see Matter of Placido v County of Orange, supra; Arias v New York City Health & Hosps. Corp., 50 AD3d 830 [2d Dept. 2008]).

While petitioner filed a no-fault application within the 90 day statutory period, such application is insufficient to place the MTA on notice of the actual facts constituting petitioner's claim as the no-fault application, although identifying the bus and specifying the petitioner's injuries, does not suggest a connection between the happening of the accident and any allegd negligence in the ownership, operation, or control of the MTA bus (see Astree v New York City Tr. Auth., 31 AD3d 589 [2d Dept. 2006] Meehan v City of New York, 295 AD2d 581 [2d Dept. 2002] Kossifos v Liberty Lines Transit, Inc., 277 AD2d 205 [2d Dept. 2000]). The no-fault application failed to establish any connection between the accident and any alleged negligence of the MTA (see Matter of Riccio v Town of Eastchester, 65 AD3d 591 [2d Dept. 2009]). Thus, there is no evidence showing that the respondent had actual knowledge of the facts essential to the petitioner's claim within 90 days of the accident or a reasonable time thereafter (see Pappalardo v City of New York, 2 AD3d 699 [2d Dept. 2003]).

Although the New York City Police Department Aided Report, filled out by the police officer who responded to the accident scene, provided notice of the facts upon which plaintiff's claim is premised, there is no proof in the record that the MTA was served with a copy of the Aided Report or was in receipt of the Aided Report prior to service of the within motion (see Russ v New York City Hous. Auth., 198 AD2d 361 [2d Dept. 1998]).

In addition, "the fact that the plaintiff appeared for a General Municipal Law § 50-h hearing did not circumvent the requirement of service of a notice of claim within the requisite 90-day statutory period" (Small v NY City Tr. Auth., 14 AD3d 690 [2d Dept. 2005]).

Therefore, as the petitioner did not proffer a reasonable excuse for the failure to serve a timely notice of claim upon the respondent and as the respondent did not have actual knowledge of the essential facts underlying the claim within 90 days or a reasonable time thereafter, and as [*4]the plaintiff did not establish that the MTA would not be prejudiced by the delay, it is hereby

ORDERED, the petitioner's motion to file a late notice of claim is denied (see Matter of Destine v City of New York, 111 AD3d 629 [2d Dept. 2013]) and the petition is dismissed.

Dated: May 2, 2014

Long Island City, NY

___________________

ROBERT J. MCDONALD

J.S.C.