Opinion
2014-02-19
Douglas STIFF, appellant, v. CITY OF NEW YORK, et al., respondents.
Marlon G. Kirton, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Leonard Koerner and Edward F.X. Hart of counsel), for respondents.
Marlon G. Kirton, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Leonard Koerner and Edward F.X. Hart of counsel), for respondents.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order the Supreme Court, Queens County (Flug, J.), dated August 16, 2012, as granted that branch of the defendants' motion which was for summary judgment dismissing the state law causes of action on the ground that the plaintiff did not serve a timely notice of claim under General Municipal Law § 50–e(1).
ORDERED that the order is affirmed insofar as appealed from, with costs.
Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipality ( seeGeneral Municipal Law § 50–e[1][a]; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312;Tully v. City of Glen Cove, 102 A.D.3d 670, 957 N.Y.S.2d 719;Decoteau v. City of New York, 97 A.D.3d 527, 947 N.Y.S.2d 343;Groves v. New York City Transit Authority, 44 A.D.3d 856, 843 N.Y.S.2d 452). The purpose of the requirement that notice of a tort claim be given to a municipality or public authority within 90 days after the claim arises is to protect the municipality or authority from stale tort claims and to provide it with an opportunity to timely and effectively investigate the claim ( see Vallejo–Bayas v. New York City Tr. Auth., 103 A.D.3d 881, 962 N.Y.S.2d 203;Palmer v. Society for Seamen's Children, 88 A.D.3d 970, 931 N.Y.S.2d 389;Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662;Matter of Andrew T.B. v. Brewster Cent. School Dist., 18 A.D.3d 745, 795 N.Y.S.2d 718).
Here, the plaintiff's cause of action accrued on September 8, 2004, when he allegedly was assaulted by another inmate at Rikers Island. Thus, he had until December 7, 2004, to serve a notice of claim. The plaintiff did not serve his notice of claim until December 10, 2004, three days after the expiration of the statutory period. Moreover, he never sought leave to serve a late notice of claim, or to deem his notice of claim timely filed nunc pro tunc, within the one–year–and–90–day statute of limitations period.
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the state law causes of action ( see Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d 666, 962 N.Y.S.2d 279;McShane v. Town of Hempstead, 66 A.D.3d 652, 886 N.Y.S.2d 751).