Matter of Tkebuchava v. New York City Tr. Auth.

Matter of Tkebuchava v New York City Tr. Auth. 2026 NY Slip Op 05543 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Tato Tkebuchava, appellant, v New York City Transit Authority, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-00773, 2025-07108, (Index No. 527319/24) Valerie Brathwaite Nelson, J.P. Paul Wooten Janice A. Taylor Elena Goldberg Velazquez, JJ. Law Office of Michael H. Joseph, PLLC, New York, NY, for appellant. Anna J. Ervolina, Brooklyn, NY (Theresa A. Frame of counsel), for respondent. [*1] DECISION & ORDER In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Kings County (Gina Abadi, J.), dated December 17, 2024, and (2) an order of the same court dated May 14, 2025. The order dated December 17, 2024, denied the petition and, in effect, dismissed the proceeding. The order dated May 14, 2025, insofar as appealed from, denied that branch of the petitioner's motion which was for leave to renew the petition. ORDERED that the order dated December 17, 2024, is reversed, on the law, on the facts, and in the exercise of discretion, and the petition is granted; and it is further, ORDERED that the appeal from the order dated May 14, 2025, is dismissed as academic in light of our determination on the appeal from the order dated December 17, 2024; and it is further, ORDERED that one bill of costs is awarded to the petitioner. On April 16, 2024, the petitioner allegedly sustained personal injuries when his vehicle, while stopped at red light, was hit by a bus, owned by the respondent, New York City Transit Authority (hereinafter NYCTA), which had been in the process of making a left turn. On May 1, 2024, the petitioner served a notice of claim on Metropolitan Transportation Authority and MTA Bus Company. MTA Bus Company replied in a letter dated May 14, 2024, stating that it was not the proper party to the claim. On or about October 8, 2024, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim on NYCTA. In support of the petition, the petitioner submitted, inter alia, a notice of claim submitted by Dalila Gonzalez with respect to the same accident, which had been timely served on NYCTA. In particular, Gonzalez's notice of claim alleged that she had been a passenger on the subject NYCTA bus, which did negligently strike another vehicle and resulted in severe and permanent personal injuries to her person. Annexed to Gonzalez's notice of claim was a police accident report, which indicated, among other things, that the petitioner was the driver of the other vehicle and that four passengers from the [*2]bus had been removed to the hospital for medical evaluation following the accident. In an order dated December 17, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. Thereafter, the petitioner moved, inter alia, for leave to renew the petition for leave to serve a late notice of claim. In an order dated May 14, 2025, the Supreme Court, among other things, denied that branch of the petitioner's motion. The petitioner appeals from both orders. "The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore the merits of the claim while information is still readily available" (Mitchell v Jimenez, 233 AD3d 773, 774 [internal quotation marks omitted]). Pursuant to General Municipal Law § 50-e(1)(a), a notice of claim must be served within 90 days after the claim arises. However, "[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim" (id. § 50-e[5]). "[I]n determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits" (Cruceta v New York City Tr. Auth., 244 AD3d 1187, 1188 [internal quotation marks omitted]). "Although the presence or absence of any one factor is not determinative, whether the municipality [or public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter is of great importance" (id. at 1188-1189 [internal quotation marks omitted]). "Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the proposed notice of claim; the public corporation need not have specific notice of the theory or theories themselves" (Matter of C.N. v City of New York, 208 AD3d 784, 785 [alteration and internal quotation marks omitted]). "'Generally, the phrase "facts constituting the claim" is understood to mean the facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the municipality'" (Matter of D.S. v South Huntington Union Free Sch. Dist., 176 AD3d 1075, 1077, quoting Matter of Placido v County of Orange, 112 AD3d 722, 723; see Matter of Alexander v County of Nassau, 227 AD3d 888, 890). Here, it is not in dispute that NYCTA received a timely notice of claim from Gonzalez, which set forth the basic facts of the accident, as well as an explicit allegation of liability against NYCTA based on negligence. Under the circumstances, and in light of the fact that Gonzalez's notice of claim included allegations that she was seriously injured and that four passengers of the bus were removed to a hospital, the petitioner demonstrated that NYCTA had actual knowledge of the essential facts constituting the petitioner's claim (see Matter of Arvizu v New York City Tr. Auth., 239 AD3d 643, 644; Matter of Manbodh v New York City Tr. Auth., 204 AD3d 914, 915; Matter of Joy v County of Suffolk, 89 AD3d 1025, 1026; cf. Matter of Molme v New York City Tr. Auth., 177 AD3d 601, 602). With respect to the issue of prejudice, "[t]he burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation" (Matter of Ionescu v City of New York, 230 AD3d 1143, 1145 [internal quotation marks omitted]). "Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice" (id. [internal quotation marks omitted]). "Once this initial showing has been made, the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed" (Matter of Cruz v Transdev Servs., Inc., 160 AD3d 729, 731 [internal quotation marks omitted]). Where, as here, the municipal corporation "acquired timely knowledge of the essential facts constituting the petitioner's claim," this Court has repeatedly held that the petitioner "met his [or her] initial burden of showing that the [municipal corporation] would not be prejudiced by the late notice of claim" (Matter of Manbodh v New York City Tr. Auth., 204 AD3d at 915; see Matter of McGrue v City of New York, 195 AD3d 932, 933; Matter of McVea v County of Orange, 186 AD3d 1221, 1223). In opposition, NYCTA failed to make any particularized evidentiary showing that it would be substantially prejudiced if the late notice was allowed (see Matter of Romero v County of Suffolk, 208 AD3d 662, 664; Matter of Regan v City of New York, 131 AD3d 1064, 1066). Further, "[s]ince [NYCTA] had actual knowledge of the essential facts underlying the claim and no substantial prejudice to [NYCTA] was demonstrated, the petitioner's failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim" (Matter of Manbodh v New York City Tr. Auth., 204 AD3d at 915; see Matter of McVea v County of Orange, 186 AD3d at 1223). Under the circumstances, the Supreme Court improvidently exercised its discretion when it denied the petition for leave to serve a late notice of claim. NYCTA's contention that the petition should have been rejected outright because it was not properly verified is without merit (cf. Watts v Jamaica Hosp. Med. Ctr., 222 AD3d 698, 701). In light of the foregoing, the parties' contentions related to the order dated May 14, 2025, have been rendered academic. BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court