McCrae v City of New York

McCrae v City of New York 2007 NY Slip Op 07316 [44 AD3d 306] October 2, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Mary McCrae, Individually and as Administratrix of the Estate of Sha-Keia McCrae, Deceased, Appellant,
v
City of New York, Defendant, and New York City Transit Authority et al., Respondents.

—[*1] Alexander J. Wulwick, New York, for appellant.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents

Order, Supreme Court, New York County (Robert D. Lippman, J.), entered September 8, 2006, which, to the extent appealed from, granted defendant New York City Transit Authority's motion to dismiss plaintiff's cause of action for conscious pain and suffering, unanimously affirmed, without costs.

The court properly dismissed the cause of action for conscious pain and suffering against the Transit Authority. Plaintiff's notice of claim was not served within the requisite 90-day period after the claim arose (General Municipal Law § 50-e [1] [a]), and no motion for leave to file a late notice of claim was made within one year and 90 days after the claim arose (General Municipal Law § 50-e [5]; § 50-i [1]; Pierson v City of New York, 56 NY2d 950 [1982]; Walker v New York City Health & Hosps. Corp., 36 AD3d 509 [2007]). The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action (see Rodriguez v City of New York, 169 AD2d 532 [1991]). [*2]

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.