| Croce v City of New York |
| 2010 NY Slip Op 00382 [69 AD3d 488] |
| January 19, 2010 |
| Appellate Division, First Department |
| Frank Croce, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), forrespondents.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered December 12, 2008,which granted defendants' motion for summary judgment dismissing the complaint for failure toserve a timely notice of claim, and denied plaintiff's cross motion for leave to serve a late noticeof claim, unanimously affirmed, without costs.
Plaintiff's service of an admittedly late notice of claim was a nullity (McGarty v City of New York, 44AD3d 447, 448 [2007]), and his failure to seek a court order excusing such lateness withinthe time limited for commencement of the action (General Municipal Law § 50-e [5]), i.e.,within one year and 90 days after the happening of the accident (General Municipal Law §50-i [1] [c]), requires dismissal of the action (McGarty, supra). We rejectplaintiff's argument that, by virtue of CPLR 306-b, his time to seek leave to serve a late notice ofclaim was extended until 120 days after the timely filing of his summons and complaint. Theargument rests on the incorrect premise that an action is commenced upon service, not filing, ofa summons and complaint (see CPLR 304 [a]). Concur—Mazzarelli, J.P., Saxe,Acosta, DeGrasse and Manzanet-Daniels, JJ.