| Young Soo Chi v Castelli |
| 2013 NY Slip Op 08433 [112 AD3d 816] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Young Soo Chi, Appellant et al.,Plaintiff, v Franco Castelli et al., Defendants. City of New York et al., NonpartyRespondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart,Janet Deluca,and Marta Ross of counsel), for nonparty respondent City of New York. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Patrick J.Lawless of counsel), for nonparty respondent New York City HousingAuthority.
In an action to recover damages for personal injuries, the plaintiff Young Soo Chiappeals from an order of the Supreme Court, Queens County (J. Golia, J.), entered May15, 2012, which denied his motion, denominated as one for leave to serve a late notice ofclaim upon the proposed additional defendants the City of New York and the New YorkCity Housing Authority, but which was, in actuality, for leave to renew his prior motionfor leave to serve a late notice of claim upon those proposed additional defendants,which had been denied in an order of the same court dated September 21, 2011.
Ordered that the order is affirmed, with one bill of costs.
The appellant allegedly sustained personal injuries as a result of a motor vehicleaccident on May 20, 2010. After discovering that the defendant Franco Castelli wasdriving his vehicle during the course of his employment, on or about May 20, 2011, theappellant moved pursuant to General Municipal Law § 50-e (5) for leave to serve alate notice of claim upon the proposed additional defendants the City of New York andthe New York City Housing Authority (hereinafter NYCHA). In an order datedSeptember 21, 2011, the Supreme Court denied the appellant's motion. On November 15,2011, the appellant served a renewed motion for leave to serve a late notice of claimupon the proposed additional defendants. The proposed additional defendants opposedthe renewed motion. In opposition, NYCHA argued, inter alia, that the Supreme Courtlacked authority to grant the renewed motion because it was made more than one yearand 90 days after accrual of the claim. In the order appealed from, the court denied therenewed motion, finding that it was made after the expiration of the applicable statute oflimitations and, in any event, the motion for leave to serve a late notice of claim waswithout merit.
The proposed additional defendants contend that the Supreme Court properly deniedthe appellant's renewed motion because it was made after the one-year-and-90-day statuteof limitations had expired. The court lacks authority to grant a motion for leave to serve alate notice of claim that is made after the one-year-and-90-day statute of limitations hasexpired, unless the statute [*2]has been tolled (seeGeneral Municipal Law §§ 50-e [5]; 50-i [1]; Pierson v City of NewYork, 56 NY2d 950, 954 [1982]; Cohen v Pearl Riv. Union Free SchoolDist., 51 NY2d 256, 262-263 [1980]; Matter of Alvarez v New York City Hous. Auth., 97 AD3d668 [2012]). CPLR 204 (a) tolls the statute of limitations while a motion to serve alate notice of claim is pending (see Giblin v Nassau County Med. Ctr., 61 NY2d67 [1984]; Barchet v New York City Tr. Auth., 20 NY2d 1 [1967]; Ambrus v City of New York,87 AD3d 341, 342 [2011]). Since the appellant was entitled to a toll of more thanfour months from the time that he made his original motion for leave to serve a latenotice of claim until the subsequent order was entered deciding his motion, theappellant's renewed motion was timely made (see Matter of Alvarez v New York City Hous. Auth., 97 AD3d668 [2012]; Ambrus v City of New York, 87 AD3d at 351-352).Accordingly, the court had the authority to entertain the renewed motion (see Cohenv Pearl Riv. Union Free School Dist., 51 NY2d at 266).
Nevertheless, the renewed motion was properly denied. Even if the appellantpresented a reasonable justification for his failure to present the new facts on his priormotion for leave to serve a late notice of claim, the new facts would not change thecourt's prior determination (see CPLR 2221 [e]; Commisso v Orshan, 85 AD3d845, 845-846 [2011]; Swedish v Beizer, 51 AD3d 1008, 1010 [2008]; Keyland Mech. Corp. v 529Empire Realty Corp., 48 AD3d 755 [2008]). The appellant failed to demonstratethat the proposed additional defendants acquired actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose or a reasonable time thereafter,to rebut the proposed additional defendants' assertions that the delay would substantiallyprejudice their ability to defend, and to demonstrate a reasonable excuse for the failure toserve a timely notice of claim (see General Municipal Law § 50-e [5]; Matter of Ryan v New York CityTr. Auth., 110 AD3d 902 [2013]; Matter of Klass v City of New York, 103 AD3d 800[2013]; Matter of Guminiak vCity of Mount Vernon Indus. Dev. Agency, 68 AD3d 1111, 1112 [2009];Pagan v New York City Hous. Auth., 175 AD2d 114, 115 [1991]). Mastro, J.P.,Balkin, Sgroi and Hinds-Radix, JJ., concur.