| Sun v City of New York |
| 2015 NY Slip Op 06785 [131 AD3d 1015] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Lingfei Sun, Appellant, v City of New York etal., Respondents, et al., Defendants. |
Lingfei Sun, Corona, N.Y., appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein,Christina Chung, and Amanda Nichols of counsel), for respondents.
In a consolidated action, inter alia, to recover damages for false arrest, falseimprisonment, and medical malpractice, the plaintiff appeals from an order of theSupreme Court, Queens County (Flug, J.), dated July 2, 2013, which granted the motionof the defendants City of New York, New York City Police Department, Police Officer"John Doe" with Shield Number 26912, Police Officer "John Doe" with Shield Number22027, Police Sgt. Cunningham, and Police Officer No. 12211 to dismiss theconsolidated action insofar as asserted against them for failure to comply with GeneralMunicipal Law § 50-e and pursuant to CPLR 3215 (c).
Ordered that the order is affirmed, without costs or disbursements.
After allegedly being arrested and involuntarily hospitalized on four separateoccasions between August 2003 and September 2005, the plaintiff commenced twoseparate actions alleging, inter alia, false arrest, false imprisonment, and medicalmalpractice. The actions were consolidated. Thereafter, the defendants City of NewYork, New York City Police Department, Police Officer "John Doe" with Shield Number26912, Police Officer "John Doe" with Shield Number 22027, Police Sgt. Cunningham,and Police Officer No. 12211 (hereinafter collectively the City defendants) moved todismiss the consolidated action insofar as asserted against them for failure to complywith General Municipal Law § 50-e and pursuant to CPLR 3215 (c). TheSupreme Court granted the motion.
The Supreme Court properly directed the dismissal of the plaintiff's causes of action,insofar as asserted against the City defendants, relating to an alleged incident on August2, 2003. Factual allegations concerning that incident were set forth in the complaint inthe first action, commenced under Queens County Index No. 5240/06 (hereinafter theFirst Action). Service of a notice of claim within 90 days after accrual of the claim is acondition precedent to the commencement of a tort action against the City (seeGeneral Municipal Law §§ 50-e [1] [a]; 50-i [1] [a]; Decoteau v City of New York,97 AD3d 527, 527 [2012]; Shahid v City of New York, 50 AD3d 770, 770 [2008]; Casias v City of New York, 39AD3d 681, 682 [2007]). With respect to the alleged incident on August 2, 2003, theplaintiff failed to serve a timely notice of claim. Where, as here, a claimant fails to applyfor leave to serve a late notice of claim or to deem the notice of claim served nunc protunc within one year and 90 days following the date that the claims accrued, the court iswithout authority [*2]to grant such relief (seeDecoteau v City of New York, 97 AD3d at 527; Shahid v City of New York,50 AD3d at 770).
The Supreme Court also properly directed the dismissal of the remaining causes ofaction in the First Action, insofar as asserted against the City defendants, pursuant toCPLR 3215 (c), since the plaintiff failed to move for the entry of a judgment within oneyear of the City defendants' default in answering. The plaintiff failed to offer a sufficientexcuse for the delay (see CPLR 3215 [c]; GMAC v Minewiser, 115 AD3d 707, 708 [2014]; Staples v Jeff Hunt Devs., Inc.,56 AD3d 459, 460 [2008]; Mattera v Capric, 54 AD3d 827, 828 [2008]; see alsoMatter of Duarte v Suffolk County, 230 AD2d 851, 852 [1996]).
Finally, the Supreme Court properly directed the dismissal of the causes of actioninsofar as asserted against the City defendants in the second action, which wascommenced under Queens County Index No. 19895/06 (hereinafter the Second Action).The notice of claim relating to the incident alleged in the complaint in the Second Actiondoes not name any of the City defendants and fails to set forth any alleged tortiousconduct on the part of the City defendants (see General Municipal Law§ 50-e [2]; Vargasv City of New York, 105 AD3d 834, 836 [2013], lv granted 22 NY3d858 [2013]; Shahid v City of New York, 50 AD3d at 770; see also Matter ofDuarte v Suffolk County, 230 AD2d at 852).
Accordingly, the Supreme Court properly directed the dismissal of the consolidatedaction insofar as asserted against the City defendants. Rivera, J.P., Dickerson, Cohen andBarros, JJ., concur.