Lavalliere v. Department of Correction

Appellate Division of the Supreme Court of New York

Lavalliere v. Department of Correction

304 A.D.2d 370, 759 N.Y.S.2d 8, 2003 N.Y. App. Div. LEXIS 3750

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

DecidedApril 8, 2003

StatusPublished

Cited by3 cases

This text of 304 A.D.2d 370 (Lavalliere v. Department of Correction) 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

Lavalliere v. Department of Correction, 304 A.D.2d 370, 759 N.Y.S.2d 8, 2003 N.Y. App. Div. LEXIS 3750 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Marcy Friedman, J.), entered October 11, 2001, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed since the notice of claim was served more than 90 days after the accident and no motion for leave to serve a late notice of claim was made within the one-year-and-90-day statute of limitations (see Pierson v [371]*371City of New York, 56 NY2d 950 [1982]). Neither defendant City’s participation in pretrial discovery nor the court’s prior resolution of certain issues of liability in plaintiffs favor precluded the City from raising the untimeliness of the notice of claim (see Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139 [1974]; Frank v City of New York, 240 AD2d 198 [1997]; Acevedo v City of N.Y. Dept. of Transp., 227 AD2d 245 [1996]). The statute of limitations was not tolled by plaintiffs incarceration (see CPLR 208; and see Kelly v State of New York, 57 AD2d 320, 323 [1977], affd 45 NY2d 973 [1978]), and plaintiff failed to establish that the statute should be tolled on the ground of insanity. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.

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Order, Supreme Court, New York County (Marcy Friedman, J.), entered October 11, 2001, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed since the notice of claim was served more than 90 days after the accident and no motion for leave to serve a late notice of claim was made within the one-year-and-90-day statute of limitations (see Pierson v [371]*371City of New York, 56 NY2d 950 [1982]). Neither defendant City’s participation in pretrial discovery nor the court’s prior resolution of certain issues of liability in plaintiffs favor precluded the City from raising the untimeliness of the notice of claim (see Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139 [1974]; Frank v City of New York, 240 AD2d 198 [1997]; Acevedo v City of N.Y. Dept. of Transp., 227 AD2d 245 [1996]). The statute of limitations was not tolled by plaintiffs incarceration (see CPLR 208; and see Kelly v State of New York, 57 AD2d 320, 323 [1977], affd 45 NY2d 973 [1978]), and plaintiff failed to establish that the statute should be tolled on the ground of insanity. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.

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Bluebook (online)

304 A.D.2d 370, 759 N.Y.S.2d 8, 2003 N.Y. App. Div. LEXIS 3750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavalliere-v-department-of-correction-nyappdiv-2003.

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