Williams-Smith v. MTA New York City Transit

82 A.D.3d 512, 918 N.Y.2d 345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2011
• Status: Published

Opinion

Generally, on a motion to dismiss made pursuant to CPLR 3211, the court must accept as true the facts alleged in the complaint and accord the plaintiff the benefit of “every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]). However, the court is not required to accept factual allegations that are negated by documentary evidence (see Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). Here, the documentary evidence conclusively establishes that the notice of claim was mailed 91 days after the accident, thus missing by one day the 90-day notice of claim requirement set forth in General Municipal Law § 50-e (1) (a).

Accordingly, the motion court properly determined that the notice of claim was untimely. Concur — Saxe, J.R, Friedman, Acosta, DeGrasse and Richter, JJ.