| Angulo v City of New York |
| 2008 NY Slip Op 01483 [48 AD3d 603] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Osvaldo Angulo, Respondent, v City of New York,Appellant, et al., Defendant. |
—[*1] Michael Siegel, P.C., Jackson Heights, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant City of New Yorkappeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Flug, J.), entered December 26, 2006, as denied that branch of its motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to timelyserve a notice of claim and granted the plaintiff's cross motion pursuant to General MunicipalLaw § 50-e (5) for leave to deem his notice of claim timely served, nunc pro tunc.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant City of New York which was pursuant to CPLR 3211 (a)(7) to dismiss the complaint insofar as asserted against it on the ground that the plaintiff failed totimely serve a notice of claim is granted, and the plaintiff's cross motion for leave to deem hisnotice of claim timely served, nunc pro tunc, is denied.
On May 5, 2005 the plaintiff, then employed by the Time Warner Company (hereinafterTime Warner), was working on a pole in Queens, when a nearby defective light or electrical polesnapped and hit him, allegedly causing him to fall and sustain injuries.
On August 3, 2005 Recovery Services International, Inc., acting on behalf of ACE/ESIS, Inc.(hereinafter collectively Recovery), Time Warner's workers' compensation carrier, served anotice of claim on the defendant City of New York to recover the payments it made to theplaintiff as workers' compensation benefits for the injuries he sustained in the fall. On August 5,[*2]2005 the plaintiff served his own notice of claim on the City.By letter dated August 23, 2005, the City's Comptroller rejected his claim on the ground it wasnot timely submitted. The plaintiff does not dispute the City's assertion that his notice of claimwas untimely.
The plaintiff commenced this action in June 2006 and the City served its answer on July 21,2006. After the applicable statute of limitations had expired, by notice of motion dated August16, 2006, the City moved, inter alia, pursuant to CPLR 3211 (a) (7), to dismiss the complaintinsofar as asserted against it, for failure to comply with the condition precedent of a timely noticeof claim as required by General Municipal Law § 50-e (1). In opposition, the plaintiffcontended, among other things, that he was entitled to rely on Recovery's notice of claim. Theplaintiff also cross-moved, pursuant to General Municipal Law § 50-e (5), if required, forleave to deem his notice of claim timely served, nunc pro tunc. The Supreme Court denied theCity's motion and granted the plaintiff's cross motion.
"Service of a notice of claim within 90 days after accrual of the claim is a conditionprecedent to commencing an action against [the City]. The plaintiff['s] fail[ure] to serve [his]notice of claim within the statutory period, and [his] late service without leave of court was anullity. The [plaintiff was] required to move within one year and 90 days of the accrual date ofthe claim for leave to serve a late notice of claim pursuant to General Municipal Law §50-e (5). Since the plaintiff[ ] failed to make a timely application for such relief, the [City was]entitled to dismissal of the complaint" (Maxwell v City of New York, 29 AD3d 540, 541 [2006] [citationsomitted]; see General Municipal Law § 50-e [1] [a]; § 50-i [1] [a];Pierson v City of New York, 56 NY2d 950 [1982]; Laroc v City of New York, 46 AD3d 760 [2007]; Steinberg vVillage of Garden City, 247 AD2d 463 [1998]; cf. Hartford Ins. Co. v City of New York, 29 AD3d 519 [2006]).
Contrary to the plaintiff's contention, under the circumstances of this case, he was notentitled to rely on Recovery's notice of claim to avoid dismissal of his action (see Rosenbaum v City of New York, 8NY3d 1, 10-11 [2006]; Brown v City of New York, 95 NY2d 389, 392-393 [2000];see also Steinberg v Village of Garden City, 247 AD2d 463 [1998]; cf. Hartford Ins. Co. v City of New York,29 AD3d 519 [2006]).
In light of our determination, we need not reach the parties' remaining contentions. Skelos,J.P., Fisher, Dillon and McCarthy, JJ., concur.