In an action to recover for damage to property, the defendants appealed from an order of the Supreme Court, Queens County (Weiss, J.),which granted the plaintiffs application for leave to serve a late notice of claim pursuant to General Municipal Law 50-e(5). The Appellate Division reversed.

The Supreme Court improvidently exercised its discretion in granting the application for leave to serve a late notice of claim. The plaintiff failed to demonstrate a reasonable excuse for its failure to timely serve a notice of claim. The assertion that claim documents were timely served on the City of New York was insufficient to constitute a reasonable excuse, and the five-month delay in moving for relief after discovery of the error was unreasonable. The plaintiffs argument that the defendant New York City Transit Authority (hereinafter the NYCTA) was equitably estopped from denying timely receipt of a notice of claim is also unavailing.

Moreover, the plaintiff failed to establish that the NYCTA acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. Similarly, the fact that a police accident report was prepared did not in and of itself constitute notice of the claim to the NYCTA (see Olivera v City of New York, 270 AD2d 5; Matter of Dube v City of New York, 158 AD2d 457; Caselli v City of New York, 105 AD2d 251; cf. Miranda v New York City Tr. Auth., 262 AD2d 199; Matter of Continental Ins. Co. v City of Rye, 257 AD2d 573).

Finally, although it is not necessary to reach the issue of prejudice in view of the foregoing, the plaintiff, in any event, failed to demonstrate that the NYCTA was not prejudiced in its ability to investigate the accident and prepare a defense as a result of the substantial delay in providing notice of the essential facts of the claim.

State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 2006 NY Slip Op 09602 (2D Dept 2006)