Thursday, November 15, 2012

Suing the Transit Authority.

Practice point:Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the Transit Authority, pursuant to General Municipal Law § 50-e[1][a]; § 50-i[1][a], and Public Authorities Law § 1212[2]. In determining whether to extend the time to serve, the court will consider whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; whether the claimant has a reasonable excuse for the failure to serve a timely notice; and whether the delay would substantially prejudice the public corporation in its defense on the merits.

Student note: Here, petitioner failed to demonstrate that the Transit Authority acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice upon the City of New York approximately one week after the accident, he did not serve a notice upon the Transit Authority or commence this proceeding until more than four months after the consultation. The Transit Authority did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding. Furthermore, the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the Transit Authority was unacceptable. Finally, the petitioner failed to show that the delay had not deprived the Transit Authority of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.

Case: Abromovitz v. City of New York, NY Slip Op 07108 (2d Dept. 2012).

Tomorrow’s issue: Liability for injuries to a special employee.