| Chtchannikova v City of New York |
| 2016 NY Slip Op 02952 [138 AD3d 908] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| Ludmila Chtchannikova, Appellant, v City ofNew York, Respondent, et al., Defendants. |
The Law Office of Yuriy Prakhin, P.C., Brooklyn, NY (Mitchell L. Perry ofcounsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay S. Ng and Janet L.Zaleon of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) froman order of the Supreme Court, Kings County (Baynes, J.), dated June 27, 2014, whichdenied her motion for leave to amend the notice of claim and to deem it timely servednunc pro tunc, and (2), as limited by her brief, from so much of an order of the samecourt, also dated June 27, 2014, as granted that branch of the defendant City of NewYork's cross motion which was to dismiss the amended complaint insofar as assertedagainst it for failure to serve a timely notice of claim pursuant to General Municipal Law§ 50-e.
Ordered that the first order dated June 27, 2014, is affirmed; and it is further,
Ordered that the second order dated June 27, 2014, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the respondent.
Service of a notice of claim within 90 days after accrual of the claim is a conditionprecedent to the commencement of a tort action against the City of New York(see General Municipal Law §§ 50-e [1] [a]; 50-i [1] [a]; Sun v City of New York, 131AD3d 1015, 1016 [2015]; Decoteau v City of New York, 97 AD3d 527, 527 [2012];Shahid v City of New York,50 AD3d 770, 770 [2008]). Here, the plaintiff's notice of claim, served on the Cityon or about January 11, 2011, contained an accident date of October 14, 2010. Theplaintiff's counsel later learned from the plaintiff's medical records that the correct date ofthe accident was, in fact, October 12, 2010. Given the accident date of October 12, 2010,the plaintiff's service of the notice of claim was untimely by one day. A late notice ofclaim served without leave of court is a nullity (see Cassidy v Riverhead Cent. Sch. Dist., 128 AD3d 996,997 [2015]; Matter ofKatsiouras v City of New York, 106 AD3d 916 [2013]; Robinson v Board of Educ. of CitySch. Dist. of City of N.Y., 104 AD3d 666, 666 [2013]; Decoteau v City ofNew York, 97 AD3d at 527).
Where a claimant "fails to apply for leave to serve a late notice of claim or to deem[*2]the notice of claim served nunc pro tunc within oneyear and 90 days following the date that the claims accrued, the court is without authorityto grant such relief" (Sun v City of New York, 131 AD3d at 1016; seeCassidy v Riverhead Cent. Sch. Dist., 128 AD3d at 997-998; Robinson v Boardof Educ. of City Sch. Dist. of City of N.Y., 104 AD3d at 666; Decoteau v City ofNew York, 97 AD3d at 527). Here, the Supreme Court lacked the authority to deeman amended notice of claim timely served nunc pro tunc, as the one-year-and-90-daystatute of limitations period had expired (see Bobko v City of New York, 100 AD3d 439, 440[2012]; Santiago v City of New York, 294 AD2d 483, 483 [2002]; Carr vCity of New York, 176 AD2d 779, 780 [1991]).
Accordingly, the Supreme Court properly denied the plaintiff's motion for leave toamend the notice of claim and to deem it timely served nunc pro tunc, and properlygranted that branch of the City's cross motion which was to dismiss the amendedcomplaint insofar as asserted against it. Hall, J.P., Cohen, LaSalle and Connolly, JJ.,concur.