The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for LEAVE TO FILE.

Petitioner, Wesco Insurance Company, seeks an order under General Municipal Law (GML) § 50-e (5) to extend the time to serve a notice of claim against respondent, the City of New York, for property damage allegedly suffered by petitioner's subrogor, Little Ann LLC.^[FN1] [*2]The application is denied.

GML § 50-e (5) provides that in determining whether to grant an extension, the "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 claim within" the 90-day statutory deadline for serving notices of claim. Petitioner has not shown that the City had actual notice of those facts in this case.

Petitioner's proposed claim arises from the April 2023 collapse of a parking garage in lower Manhattan. (See NYSCEF No. 3 at ¶ 2.) Petitioner alleges that its subrogor's property, located next door to the collapsed garage, was also harmed due to the collapse; and that this harm was proximately caused by the City's negligence in failing to inspect properly the garage. (See id. at ¶¶ 2-3.) Petitioner has shown only that the City was on actual notice of the damage to the garage—not damage to the adjoining property owned by the subrogor. None of the news articles submitted on this application (see NYSCEF No. 4) mention that adjoining property, much less damage to the property resulting from the garage collapse. And petitioner does not provide any other basis to believe that the City's awareness with respect to the garage would necessarily have extended to actual knowledge of injury to the adjoining premises. (See Braverman v City of White Plains, 115 AD2d 689, 690 [2d Dept 1985] [reversing grant of leave to file a late claim, when plaintiffs did not provide any evidence to support their assertion that defendant would have had actual notice of the underlying road defect].)

Petitioner's reliance on Strauss v New York City Transit Authority (195 AD2d 322 [1st Dept 1993]) is unpersuasive. (See NYSCEF No. 20 at 4.) In Strauss, petitioner slipped and fell on ice at a subway entrance. (See id. at 323.) The record reflected that the police officer who aided petitioner after her fall had also spoken with a Transit Authority officer to inform him of the dangerous icy condition that had caused petitioner's injuries. (See id. at 322-323.) The Court held that this information sufficed to put the City on actual notice of the facts constituting petitioner's claim. (See id.) Strauss thus stands for the proposition that where a municipal defendant timely receives actual notice of the would-be petitioner's injury and the allegedly actionable cause of that injury, the actual-notice requirement is satisfied. Here, on the other hand, petitioner has not shown that respondent received actual notice of the damage to its property in the first place—only of the conditions that petitioner now alleges to have caused the damage. That is not enough.

Petitioner also has not satisfied its initial burden under § 50-e (5) to show an absence of substantial prejudice to the City from petitioner's delay in serving a notice of claim. (See Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016].) Indeed, petitioner's opening papers do not even attempt to satisfy that burden. (See generally NYSCEF No. 1.) On [*3]reply, petitioner argues for the first time that given the City's knowledge of the garage collapse, "it had the ability to investigate the facts, and as such, it would not be prejudiced by Petitioner serving a notice of claim." (NYSCEF No. 20 at 6.) Again, though, the question is not what the City knew about the condition of the garage, but what it knew about the condition of the property owned by petitioner's subrogor. And, as respondent points out (NYSCEF No. 13 at 8-9), conditions on the site likely changed over the summer and fall of 2023 given the City's need, for example, to take steps enabling it to safely demolish the collapsed garage. (See Reisse v Nassau County, 141 AD2d 649, 651 [2d Dept 1988] [identifying the potential for prejudice when "the municipality did not have actual knowledge and there has been a change in the conditions which would prevent an accurate reconstruction of the circumstances existing at the time the claim arose"].)

Accordingly, it is

ORDERED that petitioner's application under GML § 50-e is denied, and the proceeding against respondent is dismissed; and it is further

ORDERED that respondent serve a copy of this order with notice of its entry on petitioner and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.