Opinion
2013-1852 RI C
02-23-2015
George Michnick, Appellant, v. City of New York, Respondent.
PRESENT: : , WESTON and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered July 25, 2013. The order, insofar as appealed from and as limited by the brief, in effect, upon reargument, adhered to a prior determination denying plaintiff's motion to vacate an order of the same court dated August 1, 2012 which had granted, on default, defendant's motion to dismiss the action.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action to recover for damage sustained to his home on January 27, 2011 as a result of a water leak due to a cracked water meter located in his garage, which meter was allegedly owned by defendant City of New York (the City). Plaintiff filed a notice of claim against the City on June 16, 2011, 140 days thereafter, and thereafter commenced this action on April 20, 2012. The City moved for summary judgment on the ground that plaintiff had failed to timely file a notice of claim within 90 days after the claim arose pursuant to General Municipal Law §§ 50-e and 50-i. By order dated August 1, 2012, the Civil Court granted the City's motion on default and dismissed the complaint. In March 2013, plaintiff moved to vacate the August 1, 2012 default order. By order dated April 17, 2013, the court denied plaintiff's motion. In June 2013, plaintiff moved, in effect, for reargument of his March 2013 motion. By order entered July 25, 2013, the court, upon, among other things, granting reargument, adhered to its April 17, 2013 determination.
In moving to vacate an order entered upon default, a defaulting plaintiff must demonstrate a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a]; Hill v Stone, 113 AD3d 595 [2014]). Here, plaintiff offered neither. A party has 90 days after the claim arises to file a notice of claim against a municipality as a condition precedent to the commencement of an action against the municipality (see General Municipal Law § 50-e). Plaintiff filed his notice of claim on June 16, 2011, 140 days after the claim arose. While plaintiff could have sought leave to file a late notice of claim within one year and 90 days after the claim arose (see General Municipal Law §§ 50-e and 50-I), he failed to do so. Thus, contrary to plaintiff's contention, the notice of claim was never timely filed (see Kokkinos v Dormitory Auth. of State of NY, 238 AD2d 550 [1997]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: February 23, 2015