Opinion
13569, 308877/10
11-20-2014
Rosa E. PAPORTERS, Plaintiff–Appellant, v. Adrian I. CAMPOS, et al., Defendants–Respondents.
Dario, Yacker, Suarez & Albert, LLC, New York (Anthony R. Suarez of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondents.
Dario, Yacker, Suarez & Albert, LLC, New York (Anthony R. Suarez of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondents.
RENWICK, J.P., SAXE, MOSKOWITZ, DeGRASSE, RICHTER, JJ.
Opinion Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 9, 2013, which, granted plaintiff's motion to renew, and upon renewal, adhered to a prior order, same court and Justice, entered on or about February 15, 2013, denying plaintiff's motion to vacate an order, same court and Justice, entered or about June 30, 2011, granting defendants' motion to dismiss the complaint on default, unanimously affirmed, without costs.
In this action for personal injuries in which plaintiff alleges that she was injured on July 17, 2009, when her car was rear-ended by a Department of Sanitation (DOS) vehicle, plaintiff's motion to vacate the order granting dismissal upon her default was properly denied. Even assuming that plaintiff demonstrated a reasonable excuse for the default based on law office failure (CPLR 2005, 5015[a] ), the action is barred by the statute of limitations. Although plaintiff timely filed a notice of claim in September 2009, this action was not commenced until October 26, 2010, more than one year and 90 days after the accident giving rise to her claim (see General Municipal Law § 50–i [1 ] ). Additionally, plaintiff improperly named DOS, which is not a suitable entity, as a defendant, rather than the City of New York (see N.Y. City Charter § 396). Thus, plaintiff cannot demonstrate a meritorious cause of action (see CPLR 5015[a][1] ; Carroll v. Nostra Realty Corp., 54 A.D.3d 623, 864 N.Y.S.2d 10 [1st Dept.2008], lv. dismissed 12 N.Y.3d 792, 879 N.Y.S.2d 38, 906 N.E.2d 1072 [2009] ). Moreover, plaintiff has not provided an affidavit or other evidence demonstrating that she sustained serious injuries (see Laourdakis v. Torres, 98 A.D.3d 892, 950 N.Y.S.2d 703 [1st Dept.2012] ; QRT Associates, Inc. v. Mouzouris, 40 A.D.3d 326, 326–27, 836 N.Y.S.2d 62 [1st Dept.2007] ).
Plaintiff's argument that she should be permitted to amend her complaint to add the City as a defendant is improperly raised for the first time on appeal (see Butler v. Gibbons, 173 A.D.2d 352, 569 N.Y.S.2d 722 [1st Dept.1991] ).