| Nappi v County of Suffolk |
| 2010 NY Slip Op 09486 [79 AD3d 990] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Joseph Nappi, as Administrator of the Estate of Angelica Nappi,Deceased, et al., Respondents, v County of Suffolk, Appellant. |
—[*1] David S. Kritzer, Huntington, N.Y., for respondents.
In an action to recover damages for personal injuries, negligent infliction of emotional distress, andwrongful death, etc., the defendant appeals from an order of the Supreme Court, Suffolk County(Costello, J.), dated April 16, 2010, which granted the plaintiffs' motion pursuant to General MunicipalLaw § 50-e (5) to deem their late notice of claim on behalf of the plaintiff Joseph Nappi, asadministrator of the estate of Angelica Nappi, and their late notice of claim on behalf of the infantplaintiff, Nicolette Nappi, timely served nunc pro tunc.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion to deem theirlate notice of claim on behalf of the plaintiff Joseph Nappi, as administrator of the estate of AngelicaNappi, and their late notice of claim on behalf of the infant plaintiff, Nicolette Nappi, timely served nuncpro tunc is denied.
That branch of the plaintiffs' motion which was to deem their late notice of claim on behalf of theplaintiff Joseph Nappi, as administrator of the estate of Angelica Nappi, with respect to the claimalleging wrongful death, to be timely served upon the defendant, nunc pro tunc, should have beendenied. The plaintiffs failed to serve a notice of claim within 90 days from the appointment of arepresentative of the decedent's estate (see General Municipal Law § 50-e [1] [a]; Mandel v New York City Health & Hosps.Corp., 43 AD3d 1005 [2007]; Mack v City of New York, 265 AD2d 308 [1999]),and their late service without leave of court was a nullity (see Maxwell v City of New York, 29 AD3d 540 [2006]; Santiago vCity of New York, 294 AD2d 483 [2002]; Henry v Aguilar, 282 AD2d 711 [2001]).The plaintiffs were required to move within two years after the death of the decedent for leave to servea late notice of claim with respect to the claim alleging wrongful death (see General MunicipalLaw § 50-i [1]; Heslin v County ofGreene, 14 NY3d 67, 72 [2010]; Collins v City of New York, 55 NY2d 646,647-648 [1981]; Miller v County ofSullivan, 36 AD3d 994, 996 [2007]; Guillan v Triborough Bridge & Tunnel Auth.,202 AD2d 472 [1994]). Since the plaintiffs failed to make a timely application for such relief, the courtlacked the power to deem the late notice of claim on behalf of the estate with respect to the claimalleging wrongful death to be timely served, nunc pro tunc (see Pierson v City of New York,56 NY2d 950, 956 [1982]; Adam H. vCounty of Orange, 66 AD3d 739, 740 [2009]; Matter of N.M. v Westchester [*2]County HealthCare Corp., 10 AD3d 421, 423 [2004]; Jones v City of New York, 300 AD2d 359[2002]; Matter of Bulger v Nassau County Med. Ctr., 266 AD2d 212 [1999]).
That branch of the plaintiffs' motion which was to deem their notice of claim on behalf of the infantplaintiff with respect to the claim to recover damages for personal injuries and negligent infliction ofemotional distress to be timely served, nunc pro tunc, should also have been denied. The plaintiffs failedto establish that the defendants received actual timely notice of the essential facts constituting their claim(see Matter of Mitchell v City of NewYork, 77 AD3d 754 [2010]; Matter of Bush v City of New York, 76 AD3d 628, 629 [2010]; Matter of Monfort v Rockville Ctr. Union FreeSchool Dist., 56 AD3d 480 [2008]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 147 [2008]). Furthermore, the plaintiffs failed to establish that the delay of more than twoyears after the subject accident in making this motion did not substantially prejudice the defendant'sability to maintain a defense on the merits (see Matter of Felice v Eastport/South Manor Cent.School Dist., 50 AD3d at 148; Matter ofAcosta v City of New York, 39 AD3d 629, 630 [2007]; Matter of Henriques v City of New York, 22 AD3d 847, 848 [2005]).Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.