Opinion
570817/03.
Decided January 15, 2004.
Defendant appeals from an order of the Small Claims Part of the Civil Court, New York County, dated June 19, 2003 (Donna G. Recant, J.) which denied its motion to dismiss the action.
Order dated June 19, 2003 (Donna G. Recant, J.) reversed, without costs, motion granted, and action dismissed.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
The court lacked authority to excuse plaintiff's late service of his notice of claim since no motion for such relief was made within the applicable one-year-and-90-day limitations period ( see, General Municipal Law § 50-e), "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, ___ AD2d ___ [Nov. 20, 2003], quoting Armstrong v. New York Convention Ctr. Operating Corp., 203 AD2d 170). Compliance with the statutory notice of claim requirement, which forms "an indispensable element of the substantive cause of action" ( Jackson v. Police Dept., 119 AD2d 551, 552), "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.)
This constitutes the decision and order of the court.