Reavesv.City of New York

Appellate Division of the Supreme Court of New York, First DepartmentNov 21, 1991
576 N.Y.S.2d 280 (N.Y. App. Div. 1991)

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November 21, 1991

Appeal from the Supreme Court, New York County (Leonard N. Cohen, J.).

Plaintiff, allegedly injured in a 1980 accident in a City playground, reached the age of majority in September 1988. Under General Municipal Law § 50-e (5), she had one year and 90 days after reaching the age of majority to seek leave to file a late notice of claim, a limitation applicable to actions against the defendant Housing Authority pursuant to Public Housing Law § 157 (2). Plaintiff's mother, in a prior action on her behalf, unsuccessfully sought leave to file a late notice of claim. Plaintiff, in this action, has neither filed a notice of claim nor sought leave to do so.

Plaintiff was required to allege in her complaint compliance with the notice of claim condition precedents to suit (Giblin v Nassau County Med. Center, 61 N.Y.2d 67). Such compliance is part of the plaintiff's substantive cause of action (Williamson Roofing Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 106), and the failure to comply is not an affirmative defense to be asserted by defendants (Rodriguez v. City of New York, 169 A.D.2d 532). Thus, plaintiff's failure to allege a timely filing of a notice of claim or to move within a year and 90 days after attaining her majority rendered her complaint legally insufficient and justified its dismissal for failure to state a cause of action (Caruso v. City of Buffalo Urban Renewal Agency, 159 A.D.2d 996).

We have considered the plaintiff's other arguments, and find them to be without merit.

Concur — Wallach, J.P., Kupferman, Ross and Smith, JJ.