Harding v Hernandez

Harding v Hernandez 2008 NY Slip Op 01079 [48 AD3d 252] February 7, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

Michael A. Harding et al., Appellants,
v
George Hernandez et al., Respondents.

—[*1] Greenberg & Merola, LLP, New York City (Hayley Greenberg of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Suzanne K. Colt of counsel), for respondents.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 27, 2006, which, insofar as appealed from, granted defendants' cross motion for summary judgment dismissing the complaint for failure to timely serve a notice of claim, unanimously affirmed, without costs.

Executive Order (Pataki) Nos. 113.7 (9 NYCRR 5.113.7) and 113.28 (9 NYCRR 5.113.28) did not extend plaintiffs' time to serve a notice of claim (McGarty v City of New York, 44 AD3d 447 [decided October 16, 2007, after the filing of all briefs]). Accordingly, plaintiffs' service of a late notice of claim without court leave 91 days after accrual of their claim was a nullity, and their failure to seek a court order excusing such lateness within one year and 90 days after accrual of their claim requires dismissal of the action (id.). We have considered plaintiffs' other arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.