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The Rogak Report: 27 Dec 2006 ** Municipal Liability - Late Notice of Claim **

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  • Lawrence Rogak
    POLICE REPORT DOES NOT CONSTITUTE NOTICE TO MUNICIPAL CORPORATION State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 2006 NY Slip Op 09602 (2D Dept
    Message 1 of 1 , Dec 27, 2006
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      POLICE REPORT DOES NOT CONSTITUTE "NOTICE" TO MUNICIPAL CORPORATION

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

      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 plaintiff's application for leave to serve a
      late notice of claim pursuant to General Municipal Law ยง 50-e(5). The
      Appellate Division reversd.

      "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
      plaintiff's 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. The
      plaintiff's assertion that the NYCTA's employee must have prepared
      and filed an accident report was completely unsubstantiated.
      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."

      Larry Rogak
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