Collins v. Manhattan & Bronx Surface Transit Operating Authority

192 A.D.2d 464, 596 N.Y.S.2d 413, 1993 N.Y. App. Div. LEXIS 4339

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered May 11, 1992, which denied plaintiff’s motion to compel defendant New York City Transit Authority (NYCTA) to accept a late notice of claim, unanimously affirmed, without costs.

The IAS Court correctly held that it lacked the discretion to grant plaintiff leave to serve a late notice of claim since the motion therefor was not made within one year and 90 days after the cause of action accrued (Public Authorities Law § 1212 [2]; see, Reis v Manhattan & Bronx Surface Tr. Operating Auth., 161 AD2d 288, lv denied 76 NY2d 707). No issue of estoppel is raised since NYCTA, rather than misleading plaintiff, provided numerous indications within the statutory period that it was the proper party defendant (see, Nowinski v City of New York, 189 AD2d 674) including actively defending against his claim. We agree with the IAS Court that plaintiff’s delay in serving a notice of claim on NYCTA was due to his own inattention. Concur — Milonas, J. P., Rosenberger, Ross and Kassal, JJ.