Fornabaio v City of New York

Fornabaio v City of New York 2007 NY Slip Op 04711 [41 AD3d 125] Decided on June 5, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 5, 2007
Tom, J.P., Mazzarelli, Williams, McGuire, Kavanagh, JJ.
387N
Index 112677/04

[*1]Joseph Fornabaio, Petitioner-Respondent,

v

The City of New York, Respondent, The New York City Housing Authority, Respondent-Appellant.




Lester Schwab Katz & Dwyer, LLP, New York (Harry
Steinberg of counsel), for appellant.
Quaranta & Associates, Bronx (Eileen T. Rohan of counsel),
for Joseph Fornabaio, respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 26, 2006, which, to the extent appealed from, on renewal of a prior order, granted the petition to serve a late notice of claim, unanimously reversed, on the law, without costs, the motion to renew and the petition denied.

The motion court lacked discretion to grant petitioner leave to file a late notice of claim, since his reargument/renewal motion was made 12 days after the 1-year-and-90-day limitations period had expired (Matter of Goffredo v City of New York, 33 AD3d 346, 347 [2006]). Nor is such an untimely motion permitted to relate back to the date when the originally timely motion was
made (id. at 348; accord Matter of Asaro v City of New York, 167 AD2d 130 [1990], lv dismissed 77 NY2d 956 [1991]). Moreover, denial of leave is warranted because the record before us is devoid of any suggestion that NYCHA bears liability for petitioner's injury (Williams v City of New York, 290 AD2d 354 [2002]).

M-290 - Fornabaio v City of New York, et al. Motion seeking leave to file supplemental record granted.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 5, 2007

CLERK