Opinion
2012-07-5
Raymond DECOTEAU, appellant, v. CITY OF NEW YORK, et al., respondents.
Ancona Associates, Mineola, N.Y. (Dustin A. Levine of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel; Elise Puzio on the brief), for respondents.
Ancona Associates, Mineola, N.Y. (Dustin A. Levine of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel; Elise Puzio on the brief), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated June 29, 2011, which granted the defendants' motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to General Municipal Law § 50–e(5).
ORDERED that the order is affirmed, with costs.
Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against the City of New York ( seeGeneral Municipal Law §§ 50–e[1][a], 50–i[1][a]; Shahid v. City of New York, 50 A.D.3d 770, 855 N.Y.S.2d 612;Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677). The plaintiff's service of a late notice of claim upon the City was a nullity, as it was made without leave of the court ( see Browne v. New York City Tr. Auth., 90 A.D.3d 965, 934 N.Y.S.2d 821;Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133;Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229). The plaintiff was required to move for leave within one year and 90 days of the accrual of the claim ( seeGeneral Municipal Law § 50–e[5]; Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331;Shahid v. City of New York, 50 A.D.3d 770, 855 N.Y.S.2d 612;Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677;Ellman v. Village of Rhinebeck, 27 A.D.3d 414, 415, 810 N.Y.S.2d 664). The plaintiff's request, made in opposition to the defendant's motion to dismiss the complaint, to deem the late notice of claim timely served nunc pro tunc was made after the one-year and 90–day statute of limitations had expired, and thus the Supreme Court was without authority to grant such relief ( see Ellman v. Village of Rhinebeck, 27 A.D.3d at 415, 810 N.Y.S.2d 664;Friedman v. City of New York, 19 A.D.3d 542, 796 N.Y.S.2d 529;Johnson v. Town of Hempstead, 18 A.D.3d 712, 794 N.Y.S.2d 924). Accordingly, the defendants' motion to dismiss the complaint was properly granted.