| McShane v Town of Hempstead |
| 2009 NY Slip Op 07235 [66 AD3d 652] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Mariellen McShane, Appellant, v Town of Hempstead etal., Defendants, and Long Island Power Authority et al.,Respondents. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), enteredJanuary 15, 2008, as denied her motion pursuant to General Municipal Law § 50-e (5) todeem a notice of claim served upon the defendant Long Island Power Authority timely served or,in the alternative, for leave to serve a late notice of claim upon the defendant Long Island PowerAuthority.
Ordered that the order is affirmed insofar as appealed from, with costs.
Service of a notice of claim within 90 days after accrual of the claim is a condition precedentto the commencement of a tort action against the defendant Long Island Power Authority(hereinafter LIPA) (see General Municipal Law § 50-e [1] [a]; § 50-i [1];Public Authorities Law § 1020-y [3]; Benzinger v Town of Brookhaven, 288AD2d 412 [2001]). Although late service of a notice of claim by leave of court is permittedunder certain circumstances, the plaintiff was required to move pursuant to General MunicipalLaw § 50-e (5) for leave to serve a late notice of claim within one year and 90 days of thedate that her claim accrued (see Laroc vCity of New York, 46 AD3d 760, 761 [2007]; Small v New York City Tr. Auth., 14 AD3d 690, 691 [2005]). Theplaintiff failed to serve a notice of claim upon LIPA within the requisite 90-day period(see General Municipal Law § 50-e [1] [a]), and served a notice of claim uponLIPA one year and six months after her claim accrued. The late service of the notice of claimwas a nullity since it was made without leave of court (see Small v New York City Tr.Auth., 14 AD3d at 691; Santiago v City of New York, 294 AD2d 483 [2002]).Furthermore, the plaintiff's failure to move for leave to serve a late notice of claim within oneyear and 90 days of the date that her claim accrued deprived the Supreme Court of authority todeem the notice of claim timely served nunc pro tunc or permit late service of a notice of claim(see Pierson v City of New York, 56 NY2d 950, 954-956 [1982]; Small v New YorkCity Tr. Auth., 14 AD3d at 691; Santiago v City of New York, 294 AD2d at 483).Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to GeneralMunicipal Law § 50-e (5) to deem the [*2]notice of claimtimely served, or in the alternative, for leave to serve a late notice of claim upon LIPA.
The plaintiff's contention that LIPA should be equitably estopped from asserting the statuteof limitations as a bar to her motion is without merit. There is no proof of any fraudulentconcealment by LIPA (see Urena vNew York City Health & Hosps. Corp., 35 AD3d 446 [2006]). Skelos, J.P., Covello,Santucci, Chambers and Austin, JJ., concur.