In Lyons, the plaintiff failed to allow the required 60 days between the notice of claim and the commencement of the action.Summary of this case from Andrucki v. Aluminum Co. of Am. (In re N.Y.C. Asbestos Litig.)
June 13, 1996
Appeal from the Supreme Court, New York County (Paula Omansky, J.).
Plaintiff allegedly slipped and fell in the Port Authority Bus Terminal on January 8, 1994. Plaintiff served a Notice of Claim upon defendant on November 4, 1994 and filed a summons and complaint 54 days later on December 27, 1994 and served it upon the defendant one day after that. The IAS Court denied defendant's motion to dismiss, concluding that although plaintiff filed suit six days too early, he had substantially complied with the statute and defendant had an adequate time to investigate the claim and to effect a settlement before the suit was commenced. This conclusion was erroneous and, therefore, we reverse and grant defendant's motion to dismiss the action.
The consent of the defendant Port Authority to suit against it "is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced." (McKinney's Uncons Laws of N.Y. § 7107 [L 1950, ch 301, § 7] [emphasis added].)
Compliance with the condition precedent in the statute of giving sixty days notice is mandatory and jurisdictional. The failure to satisfy this condition will result in withdrawal of defendant's consent to suit and compels the dismissal of the action for lack of subject matter jurisdiction ( Luciano v Fanberg Realty, 102 A.D.2d 94; Giannone v. Port Auth., 127 A.D.2d 818). The fact that the Port Authority may not have been prejudiced by the plaintiff's failure to comply with the statute is immaterial, since the requirement is jurisdictional and must be strictly construed ( Luciano v. Fanberg Realty, supra, at 97-98).
Concur — Murphy, P.J., Sullivan, Wallach, Nardelli and Tom, JJ. [ See, 165 Misc.2d 202.]