Opinion
No. 570700/16.
12-14-2016
Leroy FRAZIER, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
Order (Paul A. Goetz, J.), entered June 9, 2016, affirmed, without costs.
Civil Court properly dismissed this action because no motion for leave to serve a late notice of claim was made within the applicable one-year and 90–day limitations period (see General Municipal Law § 50–e[5] ), "and it makes no difference that plaintiff[ ], without court leave, had served the notice of claim within the limitations period" (Hall v. City of New York, 1 A.D.3d 254, 256 [2003], quoting Armstrong v. New York Convention Ctr. Operating Corp., 203 A.D.2d 170, 170–171 [1994] ; Levy v. City of New York, 1 Misc.3d 134[A], 2004 N.Y. Slip Op 50026[U] [App Term, 1st Dept 2004] ). Compliance with the statutory notice of claim requirement, which forms "an indispensable element of the substantive cause of action" ( Jackson v. Police Dept. of City of NY, 119 A.D.2d 551, 552 [1986] ), "may not be dispensed with here merely because plaintiff chose to pursue his cause of action in the Small Claims Part of the Civil Court" (Ragosto v. Triborough Bridge & Tunnel Auth., 173 Misc.2d 560, 561 [1997] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.