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Harding v. Hernandez

Appellate Division of the Supreme Court of New York, First Department
Feb 7, 2008
48 A.D.3d 252 (N.Y. App. Div. 2008)

Opinion

No. 2737.

February 7, 2008.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 27, 2006, which, insofar as appealed from, granted defendants' cross motion for summary judgment dismissing the complaint for failure to timely serve a notice of claim, unanimously affirmed, without costs.

Greenberg Merola, LLP, New York (Hayley Greenberg of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.

Befroe: Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.


Executive Order (Pataki) Nos. 113.7 ( 9 NYCRR 5.113.7) and 113.28 ( 9 NYCRR 5.113.28) did not extend plaintiffs' time to serve a notice of claim ( McGarty v City of New York, 44 AD3d 447 [decided October 16, 2007, after the filing of all briefs]). Accordingly, plaintiffs' service of a late notice of claim without court leave 91 days after accrual of their claim was a nullity, and their failure to seek a court order excusing such lateness within one year and 90 days after accrual of their claim requires dismissal of the action ( id.). We have considered plaintiffs' other arguments and find them unavailing.


Summaries of

Harding v. Hernandez

Appellate Division of the Supreme Court of New York, First Department
Feb 7, 2008
48 A.D.3d 252 (N.Y. App. Div. 2008)
Case details for

Harding v. Hernandez

Case Details

Full title:MICHAEL A. HARDING et al., Appellants, v. GEORGE HERNANDEZ et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 7, 2008

Citations

48 A.D.3d 252 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 1079
849 N.Y.S.2d 779