Fornabaio v. City of New York

41 A.D.3d 125, 837 N.Y.S.2d 88

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 26, 2006, which, to the extent appealed from, on renewal of a prior order, granted the petition to serve a late notice of claim, unanimously reversed, on the law, without costs, the motion to renew and the petition denied.

The motion court lacked discretion to grant petitioner leave to file a late notice of claim, since his reargument/renewal motion was made 12 days after the one-year-and-90-day limitations period had expired (Matter of Goffredo v City of New York, 33 AD3d 346, 347 [2006]). Nor is such an untimely motion permitted to relate back to the date when the originally timely motion was made (id. at 348; accord Matter of Asaro v City of New York, 167 AD2d 130 [1990], lv dismissed 77 NY2d 956 [1991]). Moreover, denial of leave is warranted because the record before us is devoid of any suggestion that the New York City Housing Authority bears liability for petitioner’s injury (Williams v City of New York, 290 AD2d 354 [2002]). Concur—Tom, J.P., Mazzarelli, Williams, McGuire and Kavanagh, JJ.