Gibbone v. City of New York

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 18, 2016
• Docket: 2016 NYSlipOp 50394(U)
• Status: Published

Opinion

Joseph Gibbone, Appellant,

against

City of New York, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 17, 2014. The judgment, entered upon an oral order of the same court made on September 18, 2013 granting a motion by defendant to dismiss the action, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover for damage to the sewer pipe on his property allegedly caused by defendant's negligence.

At the outset of a nonjury trial, defendant orally moved to dismiss the action based on plaintiff's failure to timely file a notice of claim. The Civil Court granted the motion. A judgment was subsequently entered dismissing the action, from which plaintiff appeals.

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipality and, by plaintiff's own account, he did not serve his notice of claim on defendant City of New York until almost two months after the expiration of the statutory time period, and never sought leave of court to file a late notice of claim (see General Municipal Law § 50-e [1] [a]; Matter of Ryan v New York City Tr. Auth., 110 AD3d 902 [2013]; Tully v City of Glen Cove, 102 AD3d 670 [2013]; McShane v Town of Hempstead, 66 AD3d 652 [2009]). Consequently, defendant's motion to dismiss the action was properly granted.

Plaintiff's remaining contentions lack merit.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 18, 2016