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Bourguignon v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jan 8, 1990
157 A.D.2d 644 (N.Y. App. Div. 1990)

Opinion

January 8, 1990

Appeal from the Supreme Court, Queens County (Graci, J.).


Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the second cause of action is granted, and the second cause of action is dismissed.

The record reveals that the plaintiff's decedent died on January 24, 1982, and that the plaintiff was thereafter appointed as personal representative of the decedent. A notice of claim was served upon the defendants on or about May 17, 1982, seeking recovery, inter alia, for wrongful death and conscious pain and suffering. On or about April 19, 1988, the defendants moved, among other things, to dismiss the second cause of action to recover for the decedent's conscious pain and suffering. The Supreme Court denied this branch of the motion. We now reverse.

Inasmuch as the plaintiff failed to file a notice of claim with respect to the cause of action to recover for conscious pain and suffering within the 90-day period after the claim arose, the notice was untimely as regards that claim (see, General Municipal Law § 50-e [a]; Nicholas v. City of New York, 130 A.D.2d 470; Gibbons v. City of Troy, 91 A.D.2d 707). Moreover, the plaintiff's failure to move for leave to serve a late notice of claim within the 1-year-and-90-day limitations period applicable to that claim deprived the court of the authority to permit late service or to deem the notice timely in the exercise of its discretion (see, Pierson v. City of New York, 56 N.Y.2d 950; Lopez v. Brentwood Union Free School Dist., 149 A.D.2d 474; Myrick v. County of Suffolk, 139 A.D.2d 633). Accordingly, dismissal of the second cause of action to recover damages for conscious pain and suffering is mandated. Mangano, J.P., Bracken, Sullivan and Balletta, JJ., concur.


Summaries of

Bourguignon v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jan 8, 1990
157 A.D.2d 644 (N.Y. App. Div. 1990)
Case details for

Bourguignon v. City of New York

Case Details

Full title:JOSEPH BOURGUIGNON, as Administrator of the Estate of RAYMOND BOURGUIGNON…

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

Date published: Jan 8, 1990

Citations

157 A.D.2d 644 (N.Y. App. Div. 1990)
549 N.Y.S.2d 743

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