Opinion
July 21, 1997
Appeal from the Supreme Court, Queens County (Levine, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The instant medical malpractice action is based upon injuries allegedly sustained by the infant plaintiff at the time of his birth on October 9, 1976. The plaintiffs served their initial notice of claim nearly ten years later, in August 1986, without first obtaining leave of court. When the defendants moved to dismiss the action approximately nine years thereafter for failure to file a timely notice of claim, the plaintiffs cross-moved to have their August 1986 notice of claim deemed timely filed, nunc pro tunc. The Supreme Court granted the defendants' motion and denied the plaintiffs' cross motion. We affirm.
Since the plaintiffs failed to file a timely notice of claim and failed to make an application to serve a late notice of claim before the applicable Statute of Limitations expired, the Supreme Court was powerless to grant their cross motion (see, General Municipal Law § 50-e; Pierson v. City of New York, 56 N.Y.2d 950; Greco v. Incorporated Vil. of Freeport, 223 A.D.2d 674; Guillan v. Triborough Bridge Tunnel Auth., 202 A.D.2d 472). Thus, the Supreme Court properly denied the plaintiffs' cross motion and dismissed the complaint.
O'Brien, J. P., Joy, Goldstein and Luciano, JJ., concur.