Warren v. Baldwin Union Free School District

281 A.D.2d 413, 721 N.Y.S.2d 289, 2001 N.Y. App. Div. LEXIS 2046

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered June 9, 2000, which granted the defendants’ motion to dismiss the complaint and denied his cross motion for leave to serve a late notice of claim.

Ordered that the order is affirmed, with costs.

The Supreme Court properly dismissed the complaint on the ground that the plaintiff failed to timely serve a notice of claim (see, Mills v County of Monroe, 59 NY2d 307, cert denied 464 US 1018; Hibbert v Suffolk County Dept. of Probation, 267 AD2d 205). Moreover, the plaintiffs cross motion for leave to serve a late notice of claim was made more than one year and 90 days after the accrual date of the claim (see, General Municipal Law § 50-e [5]; § 50-i). Therefore, the Supreme Court did not have authority to grant the cross motion (see, General Municipal Law § 50-e [5]; Hibbert v Suffolk County Dept. of Probation, supra; Matter of Turner v New York City Hous. Auth., 243 AD2d 636; Carr v City of New York, 176 AD2d 779). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.