| Bobko v City of New York |
| 2012 NY Slip Op 07418 [100 AD3d 439] |
| November 8, 2012 |
| Appellate Division, First Department |
| James Bobko, Respondent, v City of New York et al.,Appellants. |
—[*1] Raskin & Kremins, LLP, New York (David M. Hoffman of counsel), forrespondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 22, 2011,which granted plaintiff's motion to amend his notice of claim and deemed it timely served nuncpro tunc, and denied defendants' cross motion to dismiss the complaint, unanimously reversed,on the law, without costs, plaintiff's motion denied, and defendants' cross motion granted. TheClerk is directed to enter judgment dismissing the complaint. Appeal from order, same court andJustice, entered May 31, 2011, which, upon reargument, adhered to the original determination,unanimously dismissed, without costs, as academic.
Plaintiff's notice of claim, filed on June 11, 2009, contained an accident date of March 18,2009. He then moved to change the date of the accident from March 18, 2009 to March 9, 2009.Plaintiff essentially sought an order deeming the notice of claim timely served nunc pro tunc.Given the accident date of March 9, 2008, plaintiff's service of the notice of claim, however, wasuntimely by three days (see General Municipal Law § 50-e [1] [a]). This lateservice, without leave of court, was a nullity (see Croce v City of New York, 69 AD3d 488 [1st Dept 2010]; McGarty v City of New York, 44AD3d 447, 448 [1st Dept 2007]). Further, the court lacked the authority to deem the noticetimely served nunc pro tunc, as the one-year-and-90-day [*2]statute of limitations period had expired (see Pierson v City ofNew York, 56 NY2d 950, 954-956 [1982]; General Municipal Law §§ 50-e [5];50-i [1] [c]). Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.