Harding v. Hernandez

Appellate Division of the Supreme Court of New York

Harding v. Hernandez

48 A.D.3d 252, 849 N.Y.S.2d 779

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2008

StatusPublished

This text of 48 A.D.3d 252 (Harding v. Hernandez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harding v. Hernandez, 48 A.D.3d 252, 849 N.Y.S.2d 779 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 27, 2006, which, insofar as appealed from, granted defendants’ cross motion for summary judgment dismissing the complaint for failure to timely serve a notice of claim, unanimously affirmed, without costs.

Executive Order (Pataki) Nos. 113.7 (9 NYCRR 5.113.7) and 113.28 (9 NYCRR 5.113.28) did not extend plaintiffs’ time to serve a notice of claim (McGarty v City of New York, 44 AD3d 447 [decided October 16, 2007, after the filing of all briefs]). Accordingly, plaintiffs’ service of a late notice of claim without court leave 91 days after accrual of their claim was a nullity, and their failure to seek a court order excusing such lateness within one year and 90 days after accrual of their claim requires [253]*253dismissal of the action (id.). We have considered plaintiffs’ other arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.

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Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 27, 2006, which, insofar as appealed from, granted defendants’ cross motion for summary judgment dismissing the complaint for failure to timely serve a notice of claim, unanimously affirmed, without costs.

Executive Order (Pataki) Nos. 113.7 (9 NYCRR 5.113.7) and 113.28 (9 NYCRR 5.113.28) did not extend plaintiffs’ time to serve a notice of claim (McGarty v City of New York, 44 AD3d 447 [decided October 16, 2007, after the filing of all briefs]). Accordingly, plaintiffs’ service of a late notice of claim without court leave 91 days after accrual of their claim was a nullity, and their failure to seek a court order excusing such lateness within one year and 90 days after accrual of their claim requires [253]*253dismissal of the action (id.). We have considered plaintiffs’ other arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.

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Bluebook (online)

48 A.D.3d 252, 849 N.Y.S.2d 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harding-v-hernandez-nyappdiv-2008.

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