Harper v City of New York

Harper v City of New York 2012 NY Slip Op 01110 Decided on February 14, 2012 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 February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
6782 18208/99

[*1]Ronnie Harper, an infant, by his Mother and Natural Guardian, Angela Coleman, et al., Plaintiffs-Respondents, The

v

City of New York, et al., Defendants-Appellants.




Michael A. Cardozo, Corporation Counsel, New York (Fay Ng
of counsel), for appellants.
Dubow, Smith & Marothy, Bronx (Steven J. Mines of counsel),
for respondents.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 31, 2011, which, in an action for personal injuries sustained when infant plaintiff was allegedly wrongfully arrested and detained, denied defendants' motion to dismiss the complaint, and granted plaintiffs' cross motion to deem the notice of claim timely filed nunc pro tunc, unanimously reversed, on the law, without costs, defendants' motion granted, and plaintiffs' cross motion denied. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

General Municipal law § 50-e(5) only vests the court with the discretion to deem a notice of claim timely filed if the motion seeking such relief is made before the statute of limitations expires (Pierson v City of New York, 56 NY2d 950, 954-955 [1982]; McKie v LaGuardia Community Coll./CUNY, 85 AD3d 453 [2011]). Here, plaintiffs' claims accrued on June 3, 1998, and the notice of claim was filed on September 2, 1998, one day after the 90 days allotted by General Municipal Law § 50-e(1)(a). Moreover, the statute of limitations for tort claims against a municipal entity is one year and 90 days after the event occurred (see General Municipal Law § 50-i [1]). Accordingly, plaintiffs' cross motion, dated August 30, 2010, should [*2]have been denied since it was brought well after the statute of limitations for their claims had expired (see McKie at 454; Matter of Goffredo v City of New York, 33 AD3d 346, 347 [2006]).

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

ENTERED: FEBRUARY 14, 2012

CLERK