Davis v. City of New York
| Decision Date | 05 May 1998 |
| Citation | 673 N.Y.S.2d 79,250 A.D.2d 368 |
| Parties | , 1998 N.Y. Slip Op. 4285 Vikki A. DAVIS, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant, and New York Convention Center Operating Corporation, etc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Frank G. D'Esposito, for Plaintiff-Respondent.
Susan E. Lysaght, for Defendant-Appellant.
Before MILONAS, J.P., and NARDELLI, WALLACH and ANDRIAS, JJ.
Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about January 29, 1997, which granted plaintiff's cross motion to file a late notice of claim and denied defendant Convention Center's motion for summary judgment as moot, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied and the complaint dismissed as against the Convention Center. The Clerk is directed to enter judgment accordingly.
On September 7, 1995, plaintiff tripped and fell at the New York Convention Center, injuring her ankle and foot. On October 2, 1995, plaintiff served a notice of claim upon defendant City of New York by way of the Mayor and the Corporation Counsel. In March 1996, she served a summons and complaint upon both the Convention Center and the City, seeking damages for her injuries; the complaint stated that a notice of claim had been served upon the City. In June 1996, the Convention Center demanded a verified bill of particulars, and, in August 1996, it replied to plaintiff's notice for discovery.
On September 16, 1996, the Convention Center moved for summary judgment dismissing the complaint on the ground that it had never been served with a notice of claim and that the applicable one-year Statute of Limitations had run (Public Authorities Law § 2570; General Municipal Law [GML] § 50-e). The IAS court denied defendant's motion as moot and granted plaintiff's cross motion to file a late notice of claim. The court found that the original notice of claim was "misdirected" to the Mayor; that the summons and complaint had been served and filed within the Statute of Limitations period; and that no prejudice had inured to defendant by the failure to file a notice of claim as against it. Accordingly, it granted plaintiff's motion to file a late notice of claim.
It is well settled that a court has broad discretion to grant permission to file a late notice of claim. Despite such discretion, however, a court is precluded from granting such application when permission is sought after the Statute of Limitations has run (Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331; Armstrong v. New York Convention Center Operating Corp., 203 A.D.2d 170, 170-171, 610 N.Y.S.2d 267). This is precisely the circumstance in which plaintiff is situated with respect to the Convention Center. Therefore, appellant's motion for summary judgment dismissing the complaint as against it should have been granted and plaintiff's cross motion denied.
In compliance with GML § 50-e, plaintiff duly served a notice of claim against defendant New York City within the prescribed 90-day period. Pursuant to Public Authorities Law § 2570, however, service of such notice of claim under GML 50-e ...
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