Norris v City of New York

[*1] Norris v City of New York 2004 NY Slip Op 51145(U) Decided on September 30, 2004 Civil Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2004
Civil Court, Kings County

DAWN C. NORRIS, Claimant,

against

CITY OF NEW YORK, Defendant.



SCK 4709/04

Loren Baily-Schiffman, J.

Defendant moves to dismiss claimant's claim on the basis that claimant has failed to comply with the statute of limitations contained in General Municipal Law §50-i(1)(c) or in the alternative for summary judgment pursuant to CPLR §3212. Defendant alleges that the Statute of Limitations runs from the subject incident on March 24, 2003 to the commencement of the instant action by service of the Summons and Verified Complaint on July 8, 2004. According to defendant's calculation, claimant's action was commenced fourteen (14) days after the expiration of the Statute of Limitations.

Defendant's analysis of the timeliness of the instant Small Claims action is faulty. It is clear from the applicable statutes and caselaw that this Small Claims action was commenced on the date the Summons was filed rather than the date it was served. See New York Civil Court Act, §1803(a); Ryder v. Tannenbaum, 130 Misc2d42 (Civil Ct. Kings Co., 1985); Zaurov v. City of New York, 2004 NY Slip Op. 24306 (Civil Ct. Kings Co., 2004).

General Municipal Law §50-i states in relevant part that an "action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which [*2]the claim is based". The New York City Civil Court Act ("NYCCCA") §1803(a) states as follows in relevant part: "Small claims shall be commenced upon the payment by the claimant of a filing fee . . .without the service of a summons and. . . without the service of any pleading other than a statement of his cause of action by the claimant . . . To the clerk who shall reduce the same to a concise, written form and record it in a docket kept especially for such purpose."

Since at least 1985, the NYCCCA has provided that a Small Claims action is commenced by the payment of a filing fee without the service of a summons. Ryder v. Tannenbaum, supra. According to the statement of claim provided by claimant to the Small Claims clerk, the claim is based upon an event that occurred on March 23, 2003. The instant claim was filed on June 23, 2004. The time expired between the incident and the filing of the claim is one year and ninety one days. See Bacalokonstantis v. Nichols, 141 AD2d 482 at 484 (2d Dept, 1988). Accordingly, although defendant's analysis in faulty, the relief sought in its motion must be granted. The claim was not commenced within the applicable Statute of Limitations and is untimely. Defendant's motion is granted and the instant claim is dismissed.

This constitutes the Decision and Order of this Court.

Dated:September 30, 2004 __________________________

LOREN BAILY-SCHIFFMAN, J.C.C.