Williams-Smith v MTA N.Y. City Tr.

Williams-Smith v MTA N.Y. City Tr. 2011 NY Slip Op 01740 Decided on March 10, 2011 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 March 10, 2011
Saxe, J.P., Friedman, Acosta, DeGrasse, Richter, JJ.
4502 402906/08

[*1]Pearl Williams-Smith, Plaintiff-Appellant,

v

MTA New York City Transit, Defendant-Respondent.



 
Michael R. Scolnick, Airmont, for appellant.
Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for
respondent.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered December 24, 2009, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

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.

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

ENTERED: MARCH 10, 2011

CLERK