Summary
dismissing plaintiff's claims for failure to timely serve notice of claim where notice was served on defendants four days late
Summary of this case from Morgan v. Nassau CountyOpinion
01-01878
Submitted April 10, 2002
May 20, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated January 2, 2001, as, in effect, denied his motion for leave to serve a late notice of claim and granted the cross motion of the defendant the City of New York for summary judgment dismissing the complaint, on the ground that he failed to timely serve a notice of claim pursuant to General Municipal Law § 50-e.
Beth J. Schlossman, Brooklyn, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and George Gutwirth of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In his motion for leave to serve a late notice of claim, the plaintiff conceded that his original notice of claim was served on the defendant City of New York four days late. Thus, the late service of the original notice of claim was a nullity since it was made without leave of the court (see Kokkinos v. Dormitory Auth. of State of N.Y., 238 A.D.2d 550, 551; Carr v. City of New York, 176 A.D.2d 779; Bourguignon v. City of New York, 157 A.D.2d 644, 645). Furthermore, since the plaintiff's motion for leave to serve a late notice of claim was made more than one year and 90 days after the accrual date of the claim, the Supreme Court did not have the authority to grant the motion (see General Municipal Law §§ 50-e, 50-i; Hibbert v. Suffolk County Dept. of Probation, 267 A.D.2d 205; Matter of Turner v. New York City Hous. Auth., 243 A.D.2d 636, 637).
The Supreme Court properly granted the City's cross motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to timely serve a notice of claim (see Mills v. County of Monroe, 59 N.Y.2d 307, cert denied 464 U.S. 1018; Warren v. Baldwin Union Free School Dist., 281 A.D.2d 413).
We decline to reach the plaintiff's contention, in contradiction to his concession below, that the original notice of claim was timely served, as that contention is raised for the first time on appeal (see Matter of ELRAC, Inc. v. Edwards, 270 A.D.2d 414, 415; Matter of Allstate Ins. Co. v. Bieder, 212 A.D.2d 693, 694).
ALTMAN, J.P., FEUERSTEIN, FRIEDMANN, SCHMIDT and TOWNES, JJ., concur.