Yancey v City of New York

[*1] Yancey v City of New York 2015 NY Slip Op 50224(U) Decided on February 24, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2013-1749 K C

Tony V. Yancey, Appellant,

against

City of New York, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered March 12, 2013. The order granted the branches of defendant's motion seeking to open defendant's default and to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action, commenced in December 2011, to recover the principal sum of $14,804, plaintiff alleges that the Office of the Sheriff of the City of New York failed to follow proper impoundment procedures in 2001. In January 2012, the action was placed on the inquest calendar, although defendant had submitted an answer. Thereafter, defendant moved to, among other things, open its alleged default pursuant to CPLR 5015 (a) (1) and to dismiss the complaint. The Civil Court granted these branches of defendant's motion, finding that defendant had filed a timely answer and that the action was time-barred. This appeal ensued.

The record supports the Civil Court's determination that defendant's answer was timely served.

General Municipal Law § 50-e requires that a plaintiff asserting a tort claim against a municipality serve a notice of claim upon the municipality within 90 days after the claim arises, as a condition precedent to bringing an action against the municipality (see Campbell v City of New York, 4 NY3d 200, 204 [2005]; O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]), a period which may, in certain circumstances, be extended, but not beyond the applicable period of limitations (General Municipal Law § 50-e [5]; see also Pierson v City of New York, 56 NY2d 950, 955 [1982]; Iglesias v Brentwood Union Free Sch. Dist., 118 AD3d 785 [2014]). General Municipal Law § 50-i establishes a statute of limitations of one year and 90 days for tort actions against municipalities (see Campbell v City of New York, 4 NY3d 200, 201—202; Matter of Billman v Port Jervis School Dist., 84 AD3d 1367, 1370 [2011]). In this case, plaintiff does not dispute defendant's contention that plaintiff's cause of action accrued in 2001, or that the statute of limitations expired one year and 90 days thereafter. Plaintiff filed his notice of claim on July 10, 2006 and commenced this action on December 19, 2011, long after the expiration of the applicable statute of limitations. We therefore conclude that the Civil Court properly determined that the action is time-barred.

We do not consider any arguments made for the first time on appeal.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: February 24, 2015