Preview
FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017
DAF./17436s8
BU 2015-9-5-1.3-999
SUPREME COURT OF THE STATE OF NEÙøYORK
COUNTY OF KINGS
IN THE MA.TTER OF THE APPLIC..\TION OF S-.\FETY
INSUR,\NCE COMPANY A/S/O DEMASUS DEFREITAS,
FOR LEAVE TO FILE Ä I-ATE NOTICE OF CI-AIM,
INDEX NO.: 52145 4 / 201,6
Petitioner, AFFIRMATION
IN OPPOSITION
-agalnst-
NENø YORK CITY TRANSIT
AUTHORITY
Respondents.
DANIELAA. RAPISARDI, an attomey duly admitted to the practice of l¿w befote the
Courts of the State of New Yorlc affitns the following under the penalty of pe{ury:
1 . I am associated vrith I-AWRENCE HEISLER" ESQ. attomey for the NEW YORK
CITY TRANSIT AUTHORITY (the 'AUTHORITY"). I make this affirmation in opposition to
the petition that seeks to obtain leave to serve afl amended Notice of Claim.
I. Petitioner nevel sered his petition on the Authority.
2. Petitioner electronically fiIed this petition on December2,2076,just two days
before the statute of limitations expired in this mâtter. However, petitioner never served a copy of
the petition on the Authodty.l The petition does not contain a¡ affrdætt of service. In fac! the
A.uthority only learned about this petition when reviewing the Court's calendars and then retj.eved
a copy of the petition from NYSEF.
1 Electonically service on the Åuthority.
úling the petition did not constitute This was the fust document that
never appeared in this matter and would not have teceived
petitioner ever filed in this matter. Às such, the Àuthority
notice that the petition v¡as electronically filed.
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II. Petitioner failed to serve a Notice of Claim on the Authodty within 90 days of
the incident, as rcqufued by General MunicipalLaw $ 50(e).
3. General Municþal Law requires that a Notice of Claim be served within ninety (90)
days aftet the accrual of the claim and pteceding the commeûcemefit of a tort acdon against a
municþality. Lamc a. Ciry ofNeaYork,46 AD3d 760 8d. Dept, 2007);lVhite a.NewYork Ciry
HousingAutltoriry,3S AD3d 675 Qd. Dept, 2007);Maxwell u. Ciry ofNewYork,29 AD3d 540 Qd.
Dept,2006).
4. Here, this acdon ad.ses out of personal injuties that plaintiff allegedly sustained
dudng â "motor vehicle accident" that petitionsl claims occutred on Septembet 512075.
Petitioner had until Decembet 7 ,2075 to serve a Notice of Claim on the Authotity. Petitioner did
not filç this petition for leave to file a nod.ce of claim until Decembet2120l6-a year and eighty-
eight days after the accident, just two days before the st¿tute of limitations expired. As the
petition was not sewed on tÌre Authority, the Authority only teceived notice of this incident on
March 3r2017-zbout â year and six months aftet the accident. J¿¿ Exhibit A, the Authority's
st¿mped copy of the fitst page of the petition.
III. This petition should be denied because the Authotity did not acquite knowledge of the
facts constituting the claim until a year and ahLalf. after the accident and the petitioner has
not ptovided a reasonable excuse for failing to file his Notice of Claim on tine.
5. "In detennining whether , . . to deem a nodce of claim timely sewed, nunc pm lznc,
the court must consider whether (1) the public corpotad.on acquired actual knowledge of the
essend¿l facts consdtuting the claim u¡ithin 90 days aftet the claim arose or a teasonable time
therezfter, (2) the claimant was an infant at the time the claim arose, (3) the claimant h'ad a
reasonable excuse for the dela¡ and (4) the public corpotad.on was prejudiced by the delay in its
ability to maintain its defense on the medts." RoberTson a Somers Cent- Scltool Dist.,9O A.D.3d 1012,
1012 Qd Dept. 2011).
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A. Actual l(nowledge
6. Firsg the petitioner failed to provide any evidence that establishes that the Authority
had knowledge of a motor vehicle accident involving plaintiff. The petitionet beats the "burden of
establishing that the [Auttrotity] acquired ac¡tùknowledge of the essential facts constituting
the claim v¡ithin 90 days of the occurref,ce or a reâsonable time therezfte{' lYalker u.New York
CiE Trøns. Ailth., 266 A.D.2d 54, 5+55 (1 stDep't 1 999) (emphasis added).
7 . In petitioner's proposed Notice of Claim, petitioner alleges that its subrogot
Damasus Defteiøs' "vehicle, a Grcy 2010 Honda bearing license plz;te74Kl38 (i\4,\) was stuck by
a vehicle owned by the NE!ø YORK CITY TRANSIT AUTHORITY, bearing 4U1182 and
operated by an employee of that end.ty." The Authority did not have any knowledge that the bus
beating license plate AU11 82 wæ involved in a motot vehicle accident with a car beating license
pløte74K1.38. Sæ ExhibitB, the Authority's Bdef Sheet.
8. The Authodty's brief sheet classi-fies the incident as â "cdminal harassment" matter.
The incident description states "mùe motorj.st in auto Sicense plate not obtained) alþhted auto and
verbally t}reatened operâtor and fled. Operatot cânnot identify." Id. As the bdef sheet
demonstrates, the Authodty was not aware of the motorisCs identity nor was the Authodty
^\I^re
that there was any contact between the bus and the vehicle of petitioner's subrogor. The Authodty
only leamed that petitioner wâs that the bus struck the vehicle upon obtaining a copy of
"lL$og
this oetition moie than a veat and ahalf a;fter the incident.
B. Infaacv
9. Second, petitioner was not a minor at the time of the accident.
C. Reasonable Excuse
10. Third, petitioner failed to provide a reasonable excuse for waiting ayeat md,
eþhty-eight days before fiIing this motion for leave to file a late nodce of claim. The failure to
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provide a sad.sfactory explanation for the delay in seeking to file a late Notice of Claim tequires
denial of the appìication. Døbe a. Ciry of New Yorle,758 A.D.2d 457 ,557 N.Y.S. 2d. 50 (2d. Dept.
1ee0).
11. Petitioner claitns that it reasonably believed the ptopet party in this action was the
MTA. Petitioner is not a la¡rerson. Petitionet is a sophisticated insutance company. As such,
petitioner's claim is disingenuous fot sevetal teasolrs.
12- Firsq petitioner Safety Insurance Company has properþ served Notice of Claims on
New York City Transit.,{.uthority in the past for accidents involving buses. J¿¿ Exhibit C, Safety
Insurance Company's Notice of Claim on New York City Ttansit Authodty n201,2. As such,
employee eror is likeþ the true reason that petitionet failed to serve a Notice of Claim on New
Yotk City transit Authority.
13. Second, petitioner could have easily leamed that New York City Ttansit Authodty
was the proper pmry. If petitioner did even a minimal âmount of due dilþence, petitioner would
have quicHy leamed that New York City Transit Authority was tle proper pñty. A DMV recotd
search would have revealed that the bus þs¡ring license plate numbet ,\U1182 is registeted to New
York City Transit Authodty. J¿¿ Exhibit D. Additionally, petitioner would have leamed that the
MTA is never a proper party to a lawsuit.
14. Again, petitioner Safety Insurance Company is not a la¡>erson. Petidoner's
employees should have been able to easily discern the corect party in which to serve a Notice of
Claim as petitioner has done with past claims. Exhibit C.
15. Nevertheless, þorance of the law is no excuse fot failing to propedy serve a
Notice of Claim. The Second Department has tepeatedly held thzt zny neuz argumerits or er¡idence
submitted in reply must be rejected. It is eror to "rely upon facts aised in reply papers" fot the
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first time. See Rzbens u.Fund, 23 A.D.2d 636 Qd Dept. 2005), Constantine u. Premier Cab Corp., 295
A.D. 303 (2d Dept. 2002), Hirsch a. S1mta,676 N.Y.S.2d 514 (2d Dept. 1998).
16. Third, if petitioner truthfirlly believed that the MTA was the propet pary, petitionet
would have serrred a Notice of Claim on the MTA. The petition is silent as to whether a Nodce
of Claim was served on the MTA. Moreover, petitionet failed to attach any evidence to prove
that it tlrnely filed a Notice of Claim on the MTA. Petitioner cannot cure this defect in its reply
papers. The Second Departrnent has repeatedly held that any new ârguments ot evidence
submitted in reply must be rejected. It is ertor to "rely upon facts raised in reply papers" for the
first time. See Rttbens u. Fund,23 A.D.2d 636 Qd Dept. 2005), ConsTantine a. Premier Cab Corp.,295
Â.D. 303 (2d Dept. 2002), Hirscb u. S1mîa,676 N.Y.S.2d 514 (2d Dept. 1998).
D. Preiudice
17 . The Authority *ill be ptejudiced if plaintiffis allowed to serve a late Notice of
Claim. I¡Felice u.Eastport/Soutb ManorCent. ScltoolDisr.,50 A.D.3d 738,752 (2d. Dept.2008) ç'hen
analyztngrr,-hether filing a late Notice of Claim prejudices a municipality, the Second Departrnent
noted: "Of course, when the public corporadon has actual knowledge of the facts consdtuting the
claim, it may be easier for a claimant to meet this buden. Indeed, the Court of Appeals has
recentlv obserr,-ed that proof that the defendant had act:ual knowledge is an impottant factor in
determining whether the defendant is substantiall,vptejudiced by such a delay." As discussed
above, the Authodty did not have actual knowledge of this accident or plaintiffs claim. Therefore,
the Authodty rvas not able to begin investigating this incident until more tlan znd abalf after
^yeat
the incident occutted.
18. "ff]h"prejudiceaccruingto... themunicþal... ftomsuchadelayis obvious,
since memodes fade ovet dme, tecords that could have easily been obtained eady on may have
been archived, lost ot discarded, and witnesses may have telocated, just to f^me few of the
^
I
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potenti¿l obstacles. Delay in investþting and evaluating a clatm defeats the pqpose of GML $ 50-
e;' AlaareTa Ciry of NewYork, 134 A.D.3d 599, 606 (l:t Depr 20/ 5).
19. Here, petitioner filed its petition
^ye
r.and eighty-e€hty days after the accident.
The statute of limitations in this matter is only and ninety days. As such, permitting a Notice
^yeàr
of Claim to be served two days before the statute of limitations expfues would essentially eradíctte
the Notice of Claim requirement.
20. Although the Authority will be sevetely ptejudiced if plaintiff is allowed to serve a
late Notice of Claim, the Authodty need not demonsüate prejudice tesulting ftom the delay in the
filing a Notice of Claim. Lack of prejudice cannot be asserted as a basis for gtanting leave to file a
late Notice of Cl¡im. Perkins a. New York Ci4t Heahb and Hospilals C0rp.,1,67 A.D.2d 150 (1" Dept.
1ee0).
IV. Petitioner failed to attach an affidavit of metit.
27. Courts have refused to allow petitioners to file late notices of claim whete the claim
lacks medt. See e.g.Mafier of Kat7v. Town of Bedfnd,792 4.D.2d707 Qd Dept. 1993). Here, the
Authodty's report categodzes the incident as "harassment" and does not mendon âny contact
between the vehicles. Petitioner fails to zttz.clr'zlazffrdavit of merit to its papets. See 47 Tharnes
Realty, LLC. V. Robinson, 85 A.D.3d 851 (2d Dept. 201,1). Petitionet cannot cure this defect on
reply.
V. Petitioner cannot amend these papers to cute any defects.
22- At this poif,t, the st¿tute of limitations has expired. Any amended petitions filedat
this point v¡ill have been filed after the statute of limit¿tions. A petition to file a l¿te Notice of
Clâim must be made within the statute of limit¿tions. See General Oblþtions Law $ 50-e(5).
\
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WHEREFORE, in view of the foregoing, itis respectfrrlly requested that the plaintiffs
application be denied in its entireg, and for such other and further relief as this Court deems iust
and proper.
Dated: Brooklyn, New Yotk
/rpnl3,2077
+
DANIELAA. RÄPISARDI
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ATTORNETAFFIRMATION
DANIELAÀ RAPISARDI, heteby affi¡ms the following undet penalúes of periury:
That she is an attotney and counselor-at-law admitted to ptactice in the Cowts of this State.
That on Aptil 3, 2017, affrnznt served the AFFIRMATION IN OPPOSITION hereto
annexed on petiúoner viâ NYSEF.
Dated: BrooHyn, NewYotk
I
lrpnl3,2077
DANIELAÀ RAPISARDI
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RIDER
Molod, Spiø, and Desantis, P.C.
1430 Brca.d'way, 21 " Floot
New York, NewYork 10018
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DAF./17371,94
BU 2015-9-5-13-999
SUPREME COURT OF THE ST,{.TE OF NÉTø YORK
COUNTY OF KINGS
IN THE MATTER OF THE APPLICATION OF SAFETY
INSURANCE COMPANY a/s/o DEMASUS DEFRE,ITAS,
FOR LEAVE TO FILE A LATE NOTICE OF CI-AIM,
INDEX NO.:
Peddonet, AFFIRMA'TION
IN OPPOSITION
-agarnst-
NE!ø YORK CITY TRANSIT
AUTHORITY
Respondents.
x
AFFIRMATION IN OPPOSITION
x
LAWRENCE HEISLER, ESQ.
Attorney for Defendant
NEW YORK CITY TRANSIT AUTHORITY
130 Livingston Street, llth Floor
Brooklyn, New York 11201
718-694-3896
ATTORN EY C E RTI FICATION
I
DANIELA A. RAPISARDI
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Preview
FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 DAF./17436s8 BU 2015-9-5-1.3-999 SUPREME COURT OF THE STATE OF NEÙøYORK COUNTY OF KINGS IN THE MA.TTER OF THE APPLIC..\TION OF S-.\FETY INSUR,\NCE COMPANY A/S/O DEMASUS DEFREITAS, FOR LEAVE TO FILE Ä I-ATE NOTICE OF CI-AIM, INDEX NO.: 52145 4 / 201,6 Petitioner, AFFIRMATION IN OPPOSITION -agalnst- NENø YORK CITY TRANSIT AUTHORITY Respondents. DANIELAA. RAPISARDI, an attomey duly admitted to the practice of l¿w befote the Courts of the State of New Yorlc affitns the following under the penalty of pe{ury: 1 . I am associated vrith I-AWRENCE HEISLER" ESQ. attomey for the NEW YORK CITY TRANSIT AUTHORITY (the 'AUTHORITY"). I make this affirmation in opposition to the petition that seeks to obtain leave to serve afl amended Notice of Claim. I. Petitioner nevel sered his petition on the Authority. 2. Petitioner electronically fiIed this petition on December2,2076,just two days before the statute of limitations expired in this mâtter. However, petitioner never served a copy of the petition on the Authodty.l The petition does not contain a¡ affrdætt of service. In fac! the A.uthority only learned about this petition when reviewing the Court's calendars and then retj.eved a copy of the petition from NYSEF. 1 Electonically service on the Åuthority. úling the petition did not constitute This was the fust document that never appeared in this matter and would not have teceived petitioner ever filed in this matter. Às such, the Àuthority notice that the petition v¡as electronically filed. 1 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 II. Petitioner failed to serve a Notice of Claim on the Authodty within 90 days of the incident, as rcqufued by General MunicipalLaw $ 50(e). 3. General Municþal Law requires that a Notice of Claim be served within ninety (90) days aftet the accrual of the claim and pteceding the commeûcemefit of a tort acdon against a municþality. Lamc a. Ciry ofNeaYork,46 AD3d 760 8d. Dept, 2007);lVhite a.NewYork Ciry HousingAutltoriry,3S AD3d 675 Qd. Dept, 2007);Maxwell u. Ciry ofNewYork,29 AD3d 540 Qd. Dept,2006). 4. Here, this acdon ad.ses out of personal injuties that plaintiff allegedly sustained dudng â "motor vehicle accident" that petitionsl claims occutred on Septembet 512075. Petitioner had until Decembet 7 ,2075 to serve a Notice of Claim on the Authotity. Petitioner did not filç this petition for leave to file a nod.ce of claim until Decembet2120l6-a year and eighty- eight days after the accident, just two days before the st¿tute of limitations expired. As the petition was not sewed on tÌre Authority, the Authority only teceived notice of this incident on March 3r2017-zbout â year and six months aftet the accident. J¿¿ Exhibit A, the Authority's st¿mped copy of the fitst page of the petition. III. This petition should be denied because the Authotity did not acquite knowledge of the facts constituting the claim until a year and ahLalf. after the accident and the petitioner has not ptovided a reasonable excuse for failing to file his Notice of Claim on tine. 5. "In detennining whether , . . to deem a nodce of claim timely sewed, nunc pm lznc, the court must consider whether (1) the public corpotad.on acquired actual knowledge of the essend¿l facts consdtuting the claim u¡ithin 90 days aftet the claim arose or a teasonable time therezfter, (2) the claimant was an infant at the time the claim arose, (3) the claimant h'ad a reasonable excuse for the dela¡ and (4) the public corpotad.on was prejudiced by the delay in its ability to maintain its defense on the medts." RoberTson a Somers Cent- Scltool Dist.,9O A.D.3d 1012, 1012 Qd Dept. 2011). 2 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 A. Actual l(nowledge 6. Firsg the petitioner failed to provide any evidence that establishes that the Authority had knowledge of a motor vehicle accident involving plaintiff. The petitionet beats the "burden of establishing that the [Auttrotity] acquired ac¡tùknowledge of the essential facts constituting the claim v¡ithin 90 days of the occurref,ce or a reâsonable time therezfte{' lYalker u.New York CiE Trøns. Ailth., 266 A.D.2d 54, 5+55 (1 stDep't 1 999) (emphasis added). 7 . In petitioner's proposed Notice of Claim, petitioner alleges that its subrogot Damasus Defteiøs' "vehicle, a Grcy 2010 Honda bearing license plz;te74Kl38 (i\4,\) was stuck by a vehicle owned by the NE!ø YORK CITY TRANSIT AUTHORITY, bearing 4U1182 and operated by an employee of that end.ty." The Authority did not have any knowledge that the bus beating license plate AU11 82 wæ involved in a motot vehicle accident with a car beating license pløte74K1.38. Sæ ExhibitB, the Authority's Bdef Sheet. 8. The Authodty's brief sheet classi-fies the incident as â "cdminal harassment" matter. The incident description states "mùe motorj.st in auto Sicense plate not obtained) alþhted auto and verbally t}reatened operâtor and fled. Operatot cânnot identify." Id. As the bdef sheet demonstrates, the Authodty was not aware of the motorisCs identity nor was the Authodty ^\I^re that there was any contact between the bus and the vehicle of petitioner's subrogor. The Authodty only leamed that petitioner wâs that the bus struck the vehicle upon obtaining a copy of "lL$og this oetition moie than a veat and ahalf a;fter the incident. B. Infaacv 9. Second, petitioner was not a minor at the time of the accident. C. Reasonable Excuse 10. Third, petitioner failed to provide a reasonable excuse for waiting ayeat md, eþhty-eight days before fiIing this motion for leave to file a late nodce of claim. The failure to 3 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 provide a sad.sfactory explanation for the delay in seeking to file a late Notice of Claim tequires denial of the appìication. Døbe a. Ciry of New Yorle,758 A.D.2d 457 ,557 N.Y.S. 2d. 50 (2d. Dept. 1ee0). 11. Petitioner claitns that it reasonably believed the ptopet party in this action was the MTA. Petitioner is not a la¡rerson. Petitionet is a sophisticated insutance company. As such, petitioner's claim is disingenuous fot sevetal teasolrs. 12- Firsq petitioner Safety Insurance Company has properþ served Notice of Claims on New York City Transit.,{.uthority in the past for accidents involving buses. J¿¿ Exhibit C, Safety Insurance Company's Notice of Claim on New York City Ttansit Authodty n201,2. As such, employee eror is likeþ the true reason that petitionet failed to serve a Notice of Claim on New Yotk City transit Authority. 13. Second, petitioner could have easily leamed that New York City Ttansit Authodty was the proper pmry. If petitioner did even a minimal âmount of due dilþence, petitioner would have quicHy leamed that New York City Transit Authority was tle proper pñty. A DMV recotd search would have revealed that the bus þs¡ring license plate numbet ,\U1182 is registeted to New York City Transit Authodty. J¿¿ Exhibit D. Additionally, petitioner would have leamed that the MTA is never a proper party to a lawsuit. 14. Again, petitioner Safety Insurance Company is not a la¡>erson. Petidoner's employees should have been able to easily discern the corect party in which to serve a Notice of Claim as petitioner has done with past claims. Exhibit C. 15. Nevertheless, þorance of the law is no excuse fot failing to propedy serve a Notice of Claim. The Second Department has tepeatedly held thzt zny neuz argumerits or er¡idence submitted in reply must be rejected. It is eror to "rely upon facts aised in reply papers" fot the 4 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 first time. See Rzbens u.Fund, 23 A.D.2d 636 Qd Dept. 2005), Constantine u. Premier Cab Corp., 295 A.D. 303 (2d Dept. 2002), Hirsch a. S1mta,676 N.Y.S.2d 514 (2d Dept. 1998). 16. Third, if petitioner truthfirlly believed that the MTA was the propet pary, petitionet would have serrred a Notice of Claim on the MTA. The petition is silent as to whether a Nodce of Claim was served on the MTA. Moreover, petitionet failed to attach any evidence to prove that it tlrnely filed a Notice of Claim on the MTA. Petitioner cannot cure this defect in its reply papers. The Second Departrnent has repeatedly held that any new ârguments ot evidence submitted in reply must be rejected. It is ertor to "rely upon facts raised in reply papers" for the first time. See Rttbens u. Fund,23 A.D.2d 636 Qd Dept. 2005), ConsTantine a. Premier Cab Corp.,295 Â.D. 303 (2d Dept. 2002), Hirscb u. S1mîa,676 N.Y.S.2d 514 (2d Dept. 1998). D. Preiudice 17 . The Authority *ill be ptejudiced if plaintiffis allowed to serve a late Notice of Claim. I¡Felice u.Eastport/Soutb ManorCent. ScltoolDisr.,50 A.D.3d 738,752 (2d. Dept.2008) ç'hen analyztngrr,-hether filing a late Notice of Claim prejudices a municipality, the Second Departrnent noted: "Of course, when the public corporadon has actual knowledge of the facts consdtuting the claim, it may be easier for a claimant to meet this buden. Indeed, the Court of Appeals has recentlv obserr,-ed that proof that the defendant had act:ual knowledge is an impottant factor in determining whether the defendant is substantiall,vptejudiced by such a delay." As discussed above, the Authodty did not have actual knowledge of this accident or plaintiffs claim. Therefore, the Authodty rvas not able to begin investigating this incident until more tlan znd abalf after ^yeat the incident occutted. 18. "ff]h"prejudiceaccruingto... themunicþal... ftomsuchadelayis obvious, since memodes fade ovet dme, tecords that could have easily been obtained eady on may have been archived, lost ot discarded, and witnesses may have telocated, just to f^me few of the ^ I 5 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 potenti¿l obstacles. Delay in investþting and evaluating a clatm defeats the pqpose of GML $ 50- e;' AlaareTa Ciry of NewYork, 134 A.D.3d 599, 606 (l:t Depr 20/ 5). 19. Here, petitioner filed its petition ^ye r.and eighty-e€hty days after the accident. The statute of limitations in this matter is only and ninety days. As such, permitting a Notice ^yeàr of Claim to be served two days before the statute of limitations expfues would essentially eradíctte the Notice of Claim requirement. 20. Although the Authority will be sevetely ptejudiced if plaintiff is allowed to serve a late Notice of Claim, the Authodty need not demonsüate prejudice tesulting ftom the delay in the filing a Notice of Claim. Lack of prejudice cannot be asserted as a basis for gtanting leave to file a late Notice of Cl¡im. Perkins a. New York Ci4t Heahb and Hospilals C0rp.,1,67 A.D.2d 150 (1" Dept. 1ee0). IV. Petitioner failed to attach an affidavit of metit. 27. Courts have refused to allow petitioners to file late notices of claim whete the claim lacks medt. See e.g.Mafier of Kat7v. Town of Bedfnd,792 4.D.2d707 Qd Dept. 1993). Here, the Authodty's report categodzes the incident as "harassment" and does not mendon âny contact between the vehicles. Petitioner fails to zttz.clr'zlazffrdavit of merit to its papets. See 47 Tharnes Realty, LLC. V. Robinson, 85 A.D.3d 851 (2d Dept. 201,1). Petitionet cannot cure this defect on reply. V. Petitioner cannot amend these papers to cute any defects. 22- At this poif,t, the st¿tute of limitations has expired. Any amended petitions filedat this point v¡ill have been filed after the statute of limit¿tions. A petition to file a l¿te Notice of Clâim must be made within the statute of limit¿tions. See General Oblþtions Law $ 50-e(5). \ 6 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 WHEREFORE, in view of the foregoing, itis respectfrrlly requested that the plaintiffs application be denied in its entireg, and for such other and further relief as this Court deems iust and proper. Dated: Brooklyn, New Yotk /rpnl3,2077 + DANIELAA. RÄPISARDI 7 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 ATTORNETAFFIRMATION DANIELAÀ RAPISARDI, heteby affi¡ms the following undet penalúes of periury: That she is an attotney and counselor-at-law admitted to ptactice in the Cowts of this State. That on Aptil 3, 2017, affrnznt served the AFFIRMATION IN OPPOSITION hereto annexed on petiúoner viâ NYSEF. Dated: BrooHyn, NewYotk I lrpnl3,2077 DANIELAÀ RAPISARDI 8 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 RIDER Molod, Spiø, and Desantis, P.C. 1430 Brca.d'way, 21 " Floot New York, NewYork 10018 9 of 10 FILED: KINGS COUNTY CLERK 04/04/2017 01:00 PM INDEX NO. 521454/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/04/2017 DAF./17371,94 BU 2015-9-5-13-999 SUPREME COURT OF THE ST,{.TE OF NÉTø YORK COUNTY OF KINGS IN THE MATTER OF THE APPLICATION OF SAFETY INSURANCE COMPANY a/s/o DEMASUS DEFRE,ITAS, FOR LEAVE TO FILE A LATE NOTICE OF CI-AIM, INDEX NO.: Peddonet, AFFIRMA'TION IN OPPOSITION -agarnst- NE!ø YORK CITY TRANSIT AUTHORITY Respondents. x AFFIRMATION IN OPPOSITION x LAWRENCE HEISLER, ESQ. Attorney for Defendant NEW YORK CITY TRANSIT AUTHORITY 130 Livingston Street, llth Floor Brooklyn, New York 11201 718-694-3896 ATTORN EY C E RTI FICATION I DANIELA A. RAPISARDI 10 of 10