| Decoteau v City of New York |
| 2012 NY Slip Op 05384 [97 AD3d 527] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Raymond Decoteau, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and DrakeA. Colley of counsel; Elise Puzio on the brief), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Velasquez, J.), dated June 29, 2011, which granted thedefendants' motion to dismiss the complaint for failure to serve a timely notice of claim pursuantto General Municipal Law § 50-e (5).
Ordered that the order is affirmed, 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 City of New York (see GeneralMunicipal Law §§ 50-e [1] [a]; 50-i [1] [a]; Shahid v City of New York, 50 AD3d 770 [2008]; Laroc v City of New York, 46 AD3d760 [2007]). The plaintiff's service of a late notice of claim upon the City was a nullity, as itwas made without leave of the court (seeBrowne v New York City Tr. Auth., 90 AD3d 965 [2011]; Maxwell v City of New York, 29AD3d 540, 541 [2006]; Small vNew York City Tr. Auth., 14 AD3d 690, 691 [2005]). The plaintiff was required tomove for leave within one year and 90 days of the accrual of the claim (see GeneralMunicipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950, 954 [1982];Shahid v City of New York, 50AD3d 770 [2008]; Laroc v City ofNew York, 46 AD3d 760 [2007]; Ellman v Village of Rhinebeck, 27 AD3d 414, 415 [2006]). Theplaintiff's request, made in opposition to the defendant's motion to dismiss the complaint, todeem the late notice of claim timely served nunc pro tunc was made after the one-year and90-day statute of limitations had expired, and thus the Supreme Court was without authority togrant such relief (see Ellman v Village of Rhinebeck, 27 AD3d at 415; Friedman v City of New York, 19AD3d 542 [2005]; Johnson v Townof Hempstead, 18 AD3d 712 [2005]). Accordingly, the defendants' motion to dismissthe complaint was properly granted. Rivera, J.P., Eng, Chambers, Sgroi and Miller, JJ., concur.