Ahnorv.City of N.Y.

Supreme Court, Appellate Division, First Department, New York.Dec 20, 2012
956 N.Y.S.2d 53 (N.Y. App. Div. 2012)
956 N.Y.S.2d 53101 A.D.3d 5812012 N.Y. Slip Op. 8812

2012-12-20

Florence AHNOR, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants, IPIS Agency, et al., Defendants.

Michael A. Cardozo, Corporation Counsel, New York (William K. Chang of counsel), for appellants. Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for respondent.



Michael A. Cardozo, Corporation Counsel, New York (William K. Chang of counsel), for appellants. Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for respondent.
TOM, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.



Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 16, 2011, which denied the motion of defendants City of New York and New York City Department of Homeless Services to dismiss the complaint and all cross claims as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

On January 8, 2008, plaintiff was injured when she slipped and fell on a wet substance on the floor of premises owned by defendant City and leased by defendant Department of Homeless Services. On April 3, 2009, which was five days before the one–year–and–90–day statute of limitations expired (General Municipal Law § 50–i[1] ), plaintiff moved for leave to file a late notice of claim. By order entered May 26, 2009, the court granted leave and directed plaintiff to serve the late notice of claim by June 25, 2009. On June 9, 2009, plaintiff filed the late notice of claim, and she commenced this action on June 23, 2009.

Based on these circumstances, dismissal of the complaint was warranted, since the action was not timely commenced. Although the May 26, 2009 order allowed plaintiff until June 25, 2009 to file her late notice of claim, plaintiff was nevertheless required to file her complaint within the one–year–and–90–day statute of limitations ( see Doddy v. City of New York, 45 A.D.3d 431, 844 N.Y.S.2d 869 [1st Dept.2007] ). Since plaintiff filed her application for leave to file a late notice of claim five days before the statute of limitations expired, she had until five days following the entry of the May 26, 2009 order to file the summons and complaint ( see id.;see also Pichardo v. New York City Dept. of Educ., 99 A.D.3d 606, 953 N.Y.S.2d 31 [1st Dept.2012] ).

Plaintiff's reliance on the May 26, 2009 order is misplaced, because an extension of time cannot “exceed the time limited for the commencement of an action by the claimant against the [City]” (General Municipal Law § 50–e [5] ). Moreover, General Municipal Law § 50–e provides that “[a]n application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action,” (General Municipal Law § 50–e), and thus, nothing prevented plaintiff from filing the complaint prior to receiving leave to file a late notice of claim ( see Giblin v. Nassau County Med. Ctr., 61 N.Y.2d 67, 75, 471 N.Y.S.2d 563, 459 N.E.2d 856 [1984] ).