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(FILED: NEW YORK COUNTY CLERK 0171972017 03:17 PM INDEX NO. 150635/2017
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/19/2017
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK PETITION TO FILE A LATE
wan em en nace meen ene nne nate enn nnn nneneennnene K NOTICE OF CLAIM
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY A/S/O GARY UHRLASS Index No.:
-against-
NEW YORK CITY TRANSIT AUTHORITY,
Respondent(s).
canteen enn een enema nnn ennnnneen nn K
BRIAN K. SUCHOFF, an attorney at law, duly admitted to practice law before the Courts
of the State of New York, and member of the law firm of ROSS & SUCHOFF, LLC., attorneys for
Plaintiff(s) herein, affirms the following to be true under the penalties of perjury.
Your affirmant is fully familiar with the facts and circumstances surrounding the
the instant case and submits this affirmation in support of the within application for an Order
allowing plaintiff to file a late notice of claim (annexed hereto as Exhibit A) on the ground that
although a Notice of Claim was not supplied to the County of Sufflok within 90 days of the subject
incident, the County had actual knowledge of the incident, the circumstances surrounding said
incident, Petitioner’s intent to subrogate the claim, as well as the opportunity to investigate the
occurrence.
Annexed hereto as Exhibit B is the affidavit of Tamara Schmidt concerning the claim filed
by New Jersey Manufacturers Insurance Company regarding the above lawsuit.
Annexed hereto as Exhibit C is the affidavit of Gary Urhlass concerning the accident that
took place with respondent.
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STATEMENT OF FACTS
1 The within action was brought on behalf of petitioner’s insured and involves a
a claim for property damages sustained by petitioner due to the negligence of respondent on or
about on January 15, 2016. See Exhibits B and C and police report annexed hereto as Exhibit D.
2, On the aforesaid date, petitioner’s insured vehicle was lawfully and legally parked
on Forsyth Street near the intersection of Stanton Street in New York, New York. See Exhibits
B, C and D.
3 At approximately 9:11 AM, respondent attempted to make a right turn from
Forsyth Street onto Stanton Street. See Exhibits B, C and D.
4 At such time, respondent struck petitioner’s insured vehicle. See Exhibits B, C
and D.
5 As a result of the aforementioned occurrence, petitioner’s insured vehicle was
damaged. See Exhibits B, C and D.
6 Pursuant to the New Jersey Manufacturers insurance policy in force at the time of
the subject accident, petitioner paid the sum of $5,911.75 to its insured due to the damage
sustained by the vehicle. See Exhibit B and supporting damage documentation annexed hereto as
Exhibit E.
7. That following the accident the driver of respondent’s vehicle, Michael Smith,
filled out an Accident Information Exchange Form, providing petitioner’s insured with his
name,
driver’s license number and the contact information for respondent and its legal department, See
Information Exchange Form annexed hereto as Exhibit F.
8 On February 18, 2016, petitioner wrote to respondent to inform them of the
accident’s occurrence, the facts surrounding the accident and petitioner’s intent to subrogate. See
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letter annexed hereto as Exhibit G.
9. In a letter dated March 1, 2016, respondent indicated that petitioner’s original
mailing did not conform to the requirements of General Municipal Law §50-e, stating that the
law required a personal service or certified mailing of a signed and notarized notice of claim.
See letter annexed hereto as Exhibit H.
10. On April 14, 2016, petitioner also communicated with respondent to inform
respondent of pctitioner’s increased demand amount and again advising of petitioner's intent to
subrogate the claim. See letter annexed hereto as Exhibit I.
1. In addition to the aforementioned letters, Petitioner also sent two additional
communications to respondent after the expiration of the requisite 90 day statutory period. See
letters annexed hereto as Exhibit J.
12. Based upon the subrogation provisions contained within the subject insurance
policy, petitioner now seeks reimbursement from respondent in aforementioned amount, which
represents the amount paid by petitioner as well as the insured’s $500.00 deductible,
THE PETITION TO FILE A LATE NOTICE OF CLAIM SHOULD
BE GRANTED BECAUSE RESPONDENT HAD ACTUAL KNOWLEDGE
OF THE SUBJECT INCIDENT’S OCCURRENCE AND THE OPPORTUNITY TO
INVESTIGATE AND THUS, WILL NOT BE PREJUDICED BY
SERVICE OF A LATE NOTICE OF CLAIM
13 GML §50-e(5) states:
...the court, in its discretion, may extend the time to service a notice of
claim.....In determining whether to grant the extension the Court shall
consider, in particular, whether the public corporation or its attorney,
or its insurance carrier, acquired actual knowledge of the essential
facts constituting the claims within the time specified in subdivision
one, or within a reasonable time thereafter...and whether the delay in
serving the notice of claim substantially prejudiced the public corporation in
maintaining its defense on the merits.
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14. The issue herein is whether respondent will be prejudiced by service of the
annexed Notice of Claim (Exhibit A).
16. In the instant case respondent had knowledge of the subject accident during
the requisite 90 day period.
16. Specifically, Petitioner’s letter (Exhibit G), as well as its follow up letter
(Exhibit I) provided respondent with the knowledge of the accident, the date of loss, the name
petitioner’s insured and the claim amount.
17. Respondent’s knowledge of the incident was demonstrated but its reply letter
dated March 1, 2016, which addressed petitioner’s initial letter.
18. Also, respondent’s driver, Michael Smith, was present at the time of the accident
and following the accident, when the authorities arrived.
19. Further, Mr. Smith acknowledged the subject accident and completed an
Information Exchange Form, a copy of which is likely submitted to respondent,
20, The fact that respondent had actual knowledge of the accident allowed for
respondent to obtain a copy of police report and investigate the accident within the requisite 90
days period.
21. Based upon the foregoing it is clear that respondent would not be prejudiced
should the Court grant petitioner’s request.
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WHEREFORE, its is respectfully requested that the Court grant petitioner’s
petition to file a late notice of claim pursuant to General Municipal Law §50-e and for such other
and further relief this Court deems just and proper.
Dated: New York, New York
January17, 2017
a
BRIAN K. SUCHOFF
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(FILED: NEW YORK COUNTY CLERK 0171972017 03:17 PM INDEX NO. 150635/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/19/2017 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK PETITION TO FILE A LATE wan em en nace meen ene nne nate enn nnn nneneennnene K NOTICE OF CLAIM NEW JERSEY MANUFACTURERS INSURANCE COMPANY A/S/O GARY UHRLASS Index No.: -against- NEW YORK CITY TRANSIT AUTHORITY, Respondent(s). canteen enn een enema nnn ennnnneen nn K BRIAN K. SUCHOFF, an attorney at law, duly admitted to practice law before the Courts of the State of New York, and member of the law firm of ROSS & SUCHOFF, LLC., attorneys for Plaintiff(s) herein, affirms the following to be true under the penalties of perjury. Your affirmant is fully familiar with the facts and circumstances surrounding the the instant case and submits this affirmation in support of the within application for an Order allowing plaintiff to file a late notice of claim (annexed hereto as Exhibit A) on the ground that although a Notice of Claim was not supplied to the County of Sufflok within 90 days of the subject incident, the County had actual knowledge of the incident, the circumstances surrounding said incident, Petitioner’s intent to subrogate the claim, as well as the opportunity to investigate the occurrence. Annexed hereto as Exhibit B is the affidavit of Tamara Schmidt concerning the claim filed by New Jersey Manufacturers Insurance Company regarding the above lawsuit. Annexed hereto as Exhibit C is the affidavit of Gary Urhlass concerning the accident that took place with respondent. lof5 STATEMENT OF FACTS 1 The within action was brought on behalf of petitioner’s insured and involves a a claim for property damages sustained by petitioner due to the negligence of respondent on or about on January 15, 2016. See Exhibits B and C and police report annexed hereto as Exhibit D. 2, On the aforesaid date, petitioner’s insured vehicle was lawfully and legally parked on Forsyth Street near the intersection of Stanton Street in New York, New York. See Exhibits B, C and D. 3 At approximately 9:11 AM, respondent attempted to make a right turn from Forsyth Street onto Stanton Street. See Exhibits B, C and D. 4 At such time, respondent struck petitioner’s insured vehicle. See Exhibits B, C and D. 5 As a result of the aforementioned occurrence, petitioner’s insured vehicle was damaged. See Exhibits B, C and D. 6 Pursuant to the New Jersey Manufacturers insurance policy in force at the time of the subject accident, petitioner paid the sum of $5,911.75 to its insured due to the damage sustained by the vehicle. See Exhibit B and supporting damage documentation annexed hereto as Exhibit E. 7. That following the accident the driver of respondent’s vehicle, Michael Smith, filled out an Accident Information Exchange Form, providing petitioner’s insured with his name, driver’s license number and the contact information for respondent and its legal department, See Information Exchange Form annexed hereto as Exhibit F. 8 On February 18, 2016, petitioner wrote to respondent to inform them of the accident’s occurrence, the facts surrounding the accident and petitioner’s intent to subrogate. See 2 0f 5 letter annexed hereto as Exhibit G. 9. In a letter dated March 1, 2016, respondent indicated that petitioner’s original mailing did not conform to the requirements of General Municipal Law §50-e, stating that the law required a personal service or certified mailing of a signed and notarized notice of claim. See letter annexed hereto as Exhibit H. 10. On April 14, 2016, petitioner also communicated with respondent to inform respondent of pctitioner’s increased demand amount and again advising of petitioner's intent to subrogate the claim. See letter annexed hereto as Exhibit I. 1. In addition to the aforementioned letters, Petitioner also sent two additional communications to respondent after the expiration of the requisite 90 day statutory period. See letters annexed hereto as Exhibit J. 12. Based upon the subrogation provisions contained within the subject insurance policy, petitioner now seeks reimbursement from respondent in aforementioned amount, which represents the amount paid by petitioner as well as the insured’s $500.00 deductible, THE PETITION TO FILE A LATE NOTICE OF CLAIM SHOULD BE GRANTED BECAUSE RESPONDENT HAD ACTUAL KNOWLEDGE OF THE SUBJECT INCIDENT’S OCCURRENCE AND THE OPPORTUNITY TO INVESTIGATE AND THUS, WILL NOT BE PREJUDICED BY SERVICE OF A LATE NOTICE OF CLAIM 13 GML §50-e(5) states: ...the court, in its discretion, may extend the time to service a notice of claim.....In determining whether to grant the extension the Court shall consider, in particular, whether the public corporation or its attorney, or its insurance carrier, acquired actual knowledge of the essential facts constituting the claims within the time specified in subdivision one, or within a reasonable time thereafter...and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. 3 0f 5 14. The issue herein is whether respondent will be prejudiced by service of the annexed Notice of Claim (Exhibit A). 16. In the instant case respondent had knowledge of the subject accident during the requisite 90 day period. 16. Specifically, Petitioner’s letter (Exhibit G), as well as its follow up letter (Exhibit I) provided respondent with the knowledge of the accident, the date of loss, the name petitioner’s insured and the claim amount. 17. Respondent’s knowledge of the incident was demonstrated but its reply letter dated March 1, 2016, which addressed petitioner’s initial letter. 18. Also, respondent’s driver, Michael Smith, was present at the time of the accident and following the accident, when the authorities arrived. 19. Further, Mr. Smith acknowledged the subject accident and completed an Information Exchange Form, a copy of which is likely submitted to respondent, 20, The fact that respondent had actual knowledge of the accident allowed for respondent to obtain a copy of police report and investigate the accident within the requisite 90 days period. 21. Based upon the foregoing it is clear that respondent would not be prejudiced should the Court grant petitioner’s request. 4o0f 5 WHEREFORE, its is respectfully requested that the Court grant petitioner’s petition to file a late notice of claim pursuant to General Municipal Law §50-e and for such other and further relief this Court deems just and proper. Dated: New York, New York January17, 2017 a BRIAN K. SUCHOFF 5 of 5