
    John J. Tully, Appellant, v New York City Transit Authority, Respondent.
   Order of the Supreme Court, New York County (Harold Baer, Jr., J.), entered February 7, 1991, which denied petitioner’s application to file a late notice of claim, unanimously affirmed, without costs.

Petitioner alleges that on January 3, 1990 he slipped on a bottle and fell down subway steps at the 50th Street and 7th Avenue station, that the area was one where the homeless were permitted to congregate, and spread debris, causing a hazard for pedestrians, and that due to two herniated discs sustained in the accident, he was unable to give notice of the occurrence until he made the instant application on or about September 11, 1990, some nine months after the occurrence. The Transit Authority had no notice of the incident until receipt of petitioner’s motion papers. We affirm solely on the ground that the delay substantially prejudices respondent’s defense on the merits (General Municipal Law § 50-e [5]). Concur — Sullivan, J. P., Milonas, Kupferman and Smith, JJ.  