| McGarty v City of New York |
| 2007 NY Slip Op 07756 [44 AD3d 447] |
| October 16, 2007 |
| Appellate Division, First Department |
| William D. McGarty, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg of counsel),for respondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 12, 2007,which granted defendant's cross motion to dismiss the complaint for failure to file a timely noticeof claim, unanimously affirmed, without costs.
Executive Order (Pataki) No. 113.7 (9 NYCRR 5.113.7), temporarily suspending, inter alia,local laws and ordinances establishing limitations of time for the filing or service of, inter alia,any notice or process "that the courts lack authority to extend through the exercise of discretion,"does not apply to notices of claim required as a condition precedent to suit against defendantunder General Municipal Law § 50-i. As the motion court explained, the Executive Orderdoes not apply because "the statutory framework has built into it a mechanism by which a courtcan exercise its discretion" to extend the 90-day period for filing a notice of claim (GeneralMunicipal Law § 50-e [5]; cf. CB Richard Ellis v JLC Holdings, 306 AD2d 870[2003]). Plaintiff's service of a late notice of claim without court leave 91 days after accrual ofhis claim was a nullity (Wollins v NewYork City Bd. of Educ., 8 AD3d 30, 31 [2004]), and his failure to seek a court orderexcusing such lateness within one year and 90 days after accrual of his claim requires dismissalof the action (see id., citing, inter alia, Hochberg v City of New York, 99 AD2d1028 [1984], affd 63 NY2d 665 [1984]). We have considered plaintiff's other contentionsand find them unavailing. Concur—Lippman, P.J., Andrias, Marlow, Buckley andCatterson, JJ. [See 14 Misc 3d 1214(A), 2007 NY Slip Op 50031(U).]