Opinion
No. 4502.
March 10, 2011.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered December 24, 2009, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.
Michael R. Scolnick, Airmont, for appellant.
Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.
Before: Saxe, J.P., Friedman, Acosta, DeGrasse and Richter, JJ.
Generally, on a motion to dismiss made pursuant to CPLR 3211, the court must accept as true the facts alleged in the complaint and accord the plaintiff the benefit of "every possible favorable inference" ( Leon v Martinez, 84 NY2d 83, 87). However, the court is not required to accept factual allegations that are negated by documentary evidence ( see Maas v Cornell Univ., 94 NY2d 87, 91). Here, the documentary evidence conclusively establishes that the notice of claim was mailed 91 days after the accident, thus missing by one day the 90-day notice of claim requirement set forth in General Municipal Law § 50-e (1) (a).
Accordingly, the motion court properly determined that the notice of claim was untimely.