Paporters v Campos

Paporters v Campos 2014 NY Slip Op 08133 Decided on November 20, 2014 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 November 20, 2014
Renwick, J.P., Saxe, Moskowitz, DeGrasse, Richter, JJ.
13569 308877/10

[*1] Rosa E. Paporters, Plaintiff-Appellant,

v

Adrian I. Campos, et al., Defendants-Respondents.

Dario, Yacker, Suarez & Albert, LLC, New York (Anthony R. Suarez of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 9, 2013, which, granted plaintiff's motion to renew, and upon renewal, adhered to a prior order, same court and Justice, entered on or about February 15, 2013, denying plaintiff's motion to vacate an order, same court and Justice, entered or about June 30, 2011, granting defendants' motion to dismiss the complaint on default, unanimously affirmed, without costs.

In this action for personal injuries in which plaintiff alleges that she was injured on July 17, 2009, when her car was rear-ended by a Department of Sanitation (DOS) vehicle, plaintiff's motion to vacate the order granting dismissal upon her default was properly denied. Even assuming that plaintiff demonstrated a reasonable excuse for the default based on law office failure (CPLR 2005, 5015[a]), the action is barred by the statute of limitations. Although plaintiff timely filed a notice of claim in September 2009, this action was not commenced until October 26, 2010, more than one year and 90 days after the accident giving rise to her claim (see General Municpal Law § 50-i[1]). Additionally, plaintiff improperly named DOS, which is not a suitable entity, as a defendant, rather than the City of New York (see NY City Charter §§ 396). Thus, plaintiff cannot demonstrate a meritorious cause of action (see CPLR 5015[a][1]; Carroll v Nostra Realty Corp., 54 AD3d 623 [1st Dept 2008], lv dismissed 12 NY3d 792 [2009]). Moreover, plaintiff has not provided an affidavit or other evidence demonstrating that she sustained serious injuries (see Laourdakis v Torres, 98 AD3d 892 [1st Dept 2012]; QRT Associates, Inc. v Mouzouris, 40 AD3d 326, 326-27 [1st Dept 2007]).

Plaintiff's argument that she should be permitted to amend her complaint to add the City as a defendant is improperly raised for the first time on appeal (see Butler v Gibbons, 173 AD2d 352 [1st Dept 1991]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 20, 2014

CLERK