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 AD3d 254, 256 [2003], quoting Armstrong v New York Convention Ctr. Operating Corp., 203 AD2d 170, 170-171 [1994]; Levy v City of New York, 1 Misc 3d 134[A], 2004 NY 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 AD2d 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.
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.
So far as appears from the trial transcript, the issue of plaintiff's alleged dissolution was not raised at trial but, rather, was advanced by defendant for the first time in posttrial correspondence submitted to the court, correspondence not made part of the record on appeal. Even in the context of the "informal and simplified procedures" (CCA 1804-A) governing small claims matters (see generally Ragosto v Triborough Bridge & Tunnel Auth., 173 Misc 2d 560, 561 [1997]), the irregular procedure followed below prejudiced plaintiff, who was prevented from addressing the belatedly raised dissolution issue. Moreover, even accepting the court's apparent finding that plaintiff was dissolved on October 26, 2011 for nonpayment of taxes (see Tax Law § 203-a), plaintiff had capacity to pursue the underlying February 2012 small claims action - arising from services it rendered prior to its dissolution - in the course of winding up its affairs (see Business Corporation Law § 1006[b]; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243 [2007]; J. Sackaris & Sons, Inc. v Onekey, LLC, 60 AD3d 733 [2009]).
The corporate defendant failed to demonstrate entitlement to vacatur relief from its default in appearing on the scheduled trial date, there being no showing of a meritorious defense to plaintiff's small claims action. The bald assertion made by defendant's employee that defendant has “always been ready to litigate the matter” is hardly sufficient to demonstrate the merits of its defense, and this even in the context of the “informal and simplified procedures” (CCA 1804) governing small claims matters ( see generally Ragosto v. Triborough Bridge & Tunnel Auth., 173 Misc.2d 560, 561 [1997] ). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
"The 'informal and simplified' procedural rules generally applied in small claims practice ( see CCA 1804) cannot be stretched beyond their breaking point to excuse a legal deficiency in a plaintiff's substantive case." ( Ragosto v. Triborough Bridge Tunnel Auth., 173 Misc 2d 560, 561; Streeter v. Ackerman, 2003 NY Slip Op 51199[U].) This constitutes the decision and order of the court.
Contrary to the conclusions arrived at by the court below, the requirement of prior written notice of the defect, like the requirement of a notice of claim, has been held to be a substantive element of the plaintiff's cause of action against the defendant rather than a mere procedural requirement ( see Cipriano v. City of New York, 96 AD2d 817). The "[i]nformal and simplified" procedure rules generally applied in small claims cases ( see UDCA 1804) may not be used to excuse a fatal deficiency in a plaintiff's substantive case ( Ragosto v. Triborough Bridge Tunnel Auth., 173 Misc 2d 560 [App Term, 1st Dept 1997]). Consequently, in order that "substantial justice . . . [be] done between the parties according to the rules and principles of substantive law" (UDCA 1807), this additional condition precedent to bringing the action against defendant may not be ignored.
Contrary to the conclusions arrived at by the court below, the requirement of prior written notice of the defect, like the requirement of a notice of claim, has been held to be a substantive element of the plaintiff's cause of action against the defendant rather than a mere procedural requirement (see Cipriano v City of New York, 96 AD2d 817 [1983]). The "[i]nformal and simplified" procedure rules generally applied in small claims cases (see UDCA 1804) may not be used to excuse a fatal deficiency in a plaintiff's substantive case (Ragosto v Triborough Bridge & Tunnel Auth., 173 Misc 2d 560 [App Term, 1st Dept 1997]). Consequently, in order that "substantial justice . . . [be] done between the parties according to the rules and principles of substantive law" (UDCA 1807), this additional condition precedent to bringing the action against defendant may not be ignored.
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.
The notice of claim requirement is statutorily imposed. The complaint must include allegations pertaining to the facts of the notice of claim, its service and filing, which constitute an element of the substantive cause of action (see Ragosto v Triborough Bridge & Tunnel Auth., 173 Misc.2d 560, 561 [1st Dept 1997], quoting Jackson v Police Dept, of City of N.Y., 119 A.D.2d 551, 552 [2d Dept 1986]). A complaint which fails to allege compliance therewith is legally insufficient and must be dismissed for failure to state a cause of action (Nu-Lfe Const. Corp, v Board of Educ. of City of N.Y., 204 A.D.2d 106 [1st Dept 1994]; Reaves v City of New York, 177 A.D.2d 437, 437 [1st Dept 1991]).
As plaintiff did not serve the jurisdictional prerequisite of a Notice of Claim within the statutory time period of ninety (90) days after the claim arose, and in the form required within Section 50-e, plaintiff's action is now barred, despite plaintiff's arguments in Plaintiff's Supplemental Correspondence of July 8, 2021 at pages 9 through 18. See, Ragosto v. Triborough Bridge & Tunnel Authority, 173 Misc.2d 560, 561 (App. Term 1997) (small claims actions that did not comply with notice of claim requirements must be dismissed).