Munn v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Munn v. New York City Housing Authority

202 A.D.2d 210, 608 N.Y.S.2d 221

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

DecidedMarch 3, 1994

StatusPublished

Cited by5 cases

This text of 202 A.D.2d 210 (Munn v. New York City Housing Authority) 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

Munn v. New York City Housing Authority, 202 A.D.2d 210, 608 N.Y.S.2d 221 (N.Y. Ct. App. 1994).

Pincite

Opinion

—Order, Supreme Court, Queens County (Arnold Price, J., upon decision of Robert Nahman, J.), entered January 27, 1992, which, insofar as appealed from, denied defendant New York City Housing Authority’s motion to dismiss plaintiff’s causes of action for battery and false imprisonment, unanimously affirmed, without costs.

We agree with the IAS Court that the Statute of Limitations was tolled during the pendency of plaintiff’s application for leave to serve a late notice of claim (CPLR 204 [a]), plaintiff having been statutorily prohibited from bringing this action until granted such leave (Public Housing Law § 157 [2]; General Municipal Law § 50-e [5]). The earlier, timely notice of claim signed by the decedent’s mother did not remove this [211]*211impediment to suit, since a notice of claim must be "sworn to by or on behalf of the claimant” (General Municipal Law § 50-e [2]). Thus, the court properly denied the motion to dismiss the amended complaint’s causes of action for battery and false imprisonment, all governed by a one-year Statute of Limitations.

Moreover, since defendant abandoned its appeal from the order entered April 10, 1991 denying its motion with respect to the original complaint to dismiss the battery causes of action as time-barred, and since plaintiffs amended complaint, insofar as it added a cause of action for false imprisonment, did not substantively alter the original complaint, and thus did not render the appeal from the April 10 order moot (see, Anthony J. DeMarco, Jr., P. C. v Bay Ridge Car World, 169 AD2d 808, 809), defendant should be estopped from seeking review of the issues that could have been raised on the abandoned appeal (see, Montalvo v Nel Taxi Corp., 114 AD2d 494, lv denied and dismissed 68 NY2d 643).

We have reviewed defendant’s other claims and find them to be without merit. Concur — Sullivan, J. P., Ross, Asch, Rubin and Tom, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Queens County (Arnold Price, J., upon decision of Robert Nahman, J.), entered January 27, 1992, which, insofar as appealed from, denied defendant New York City Housing Authority’s motion to dismiss plaintiff’s causes of action for battery and false imprisonment, unanimously affirmed, without costs.

We agree with the IAS Court that the Statute of Limitations was tolled during the pendency of plaintiff’s application for leave to serve a late notice of claim (CPLR 204 [a]), plaintiff having been statutorily prohibited from bringing this action until granted such leave (Public Housing Law § 157 [2]; General Municipal Law § 50-e [5]). The earlier, timely notice of claim signed by the decedent’s mother did not remove this [211]*211impediment to suit, since a notice of claim must be "sworn to by or on behalf of the claimant” (General Municipal Law § 50-e [2]). Thus, the court properly denied the motion to dismiss the amended complaint’s causes of action for battery and false imprisonment, all governed by a one-year Statute of Limitations.

Moreover, since defendant abandoned its appeal from the order entered April 10, 1991 denying its motion with respect to the original complaint to dismiss the battery causes of action as time-barred, and since plaintiffs amended complaint, insofar as it added a cause of action for false imprisonment, did not substantively alter the original complaint, and thus did not render the appeal from the April 10 order moot (see, Anthony J. DeMarco, Jr., P. C. v Bay Ridge Car World, 169 AD2d 808, 809), defendant should be estopped from seeking review of the issues that could have been raised on the abandoned appeal (see, Montalvo v Nel Taxi Corp., 114 AD2d 494, lv denied and dismissed 68 NY2d 643).

We have reviewed defendant’s other claims and find them to be without merit. Concur — Sullivan, J. P., Ross, Asch, Rubin and Tom, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

202 A.D.2d 210, 608 N.Y.S.2d 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munn-v-new-york-city-housing-authority-nyappdiv-1994.

Opinion

Related

Cite This Page — Counsel Stack