Rothholz v. City of New York

Appellate Division of the Supreme Court of New York

Rothholz v. City of New York

212 A.D.2d 400, 623 N.Y.S.2d 106

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

DecidedFebruary 9, 1995

StatusPublished

This text of 212 A.D.2d 400 (Rothholz v. City of New York) 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

Rothholz v. City of New York, 212 A.D.2d 400, 623 N.Y.S.2d 106 (N.Y. Ct. App. 1995).

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Opinion

—Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 25, 1993, which, inter alia, denied defendant’s cross-motion for leave to amend its answer to assert the Statute of Limitations as a defense, and order, same court and Justice, entered on or about January 4, 1994, which, insofar as appealed from as limited by defendant’s brief, denied defendant’s motion for renewal, unanimously affirmed, without costs.

The complaint that was annexed to plaintiffs order to show cause for leave to serve a late notice of claim on defendant City alleged that defendant’s employees treated plaintiff until December 1990. Under these circumstances, defendant’s stipulation accepting the late notice of claim as of October 21, 1991 renders any Statute of Limitations defense nonviable since the action was thereafter commenced in January 1992 within the one year and 90-day period set forth in General Municipal Law § 50-i. There being no merit to the defense, the court properly denied leave to amend the answer (Gaveglia v Barrack, 150 AD2d 341).

Defendant’s motion for renewal was properly denied on the ground that defendant failed to offer a valid excuse for not having submitted the alleged new facts on the original motion (Foley v Roche, 68 AD2d 558, 568). Concur—Ellerin, J. P., Wallach, Asch and Nardelli, JJ.

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—Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 25, 1993, which, inter alia, denied defendant’s cross-motion for leave to amend its answer to assert the Statute of Limitations as a defense, and order, same court and Justice, entered on or about January 4, 1994, which, insofar as appealed from as limited by defendant’s brief, denied defendant’s motion for renewal, unanimously affirmed, without costs.

The complaint that was annexed to plaintiffs order to show cause for leave to serve a late notice of claim on defendant City alleged that defendant’s employees treated plaintiff until December 1990. Under these circumstances, defendant’s stipulation accepting the late notice of claim as of October 21, 1991 renders any Statute of Limitations defense nonviable since the action was thereafter commenced in January 1992 within the one year and 90-day period set forth in General Municipal Law § 50-i. There being no merit to the defense, the court properly denied leave to amend the answer (Gaveglia v Barrack, 150 AD2d 341).

Defendant’s motion for renewal was properly denied on the ground that defendant failed to offer a valid excuse for not having submitted the alleged new facts on the original motion (Foley v Roche, 68 AD2d 558, 568). Concur—Ellerin, J. P., Wallach, Asch and Nardelli, JJ.

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Bluebook (online)

212 A.D.2d 400, 623 N.Y.S.2d 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rothholz-v-city-of-new-york-nyappdiv-1995.

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