Diegelman v. City of Buffalo, 711 CA 14-01919

• Decision Date: 12 June 2015
• Docket Number: 711 CA 14-01919
• Parties: In the Matter of James R. DIEGELMAN and Andrea M. Diegelman, Claimants–Respondents, v. CITY OF BUFFALO and City of Buffalo Board of Education, Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1527

11 N.Y.S.3d 762

2015 N.Y. Slip Op. 05027

In the Matter of James R. DIEGELMAN and Andrea M. Diegelman, Claimants–Respondents

v.CITY OF BUFFALO and City of Buffalo Board of Education, Respondents–Appellants.

711 CA 14-01919

Supreme Court, Appellate Division, Fourth Department, New York.

June 12, 2015.

Timothy A. Ball, Corporation Counsel, Buffalo (David M. Lee of Counsel), for Respondents–Appellants.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Claimants–Respondents.

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

OpinionMEMORANDUM:

On appeal from an order granting claimants' application seeking leave to serve a late notice of claim pursuant to General Municipal Law § 50–e (5), respondents contend that Supreme Court abused its discretion in granting the application because the claim, which is premised upon an injury sustained during the employment of claimant James R. Diegelman as a police officer, is barred by General Municipal Law § 207–c and thus is patently without merit. We agree. Respondents are correct that the claim is barred by section 207–c (see Damiani v. City of Buffalo, 198 A.D.2d 814, 814–815, 603 N.Y.S.2d 1006, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415 ; see also Dischiavi v. Calli, 111 A.D.3d 1258, 1262, 975 N.Y.S.2d 266 ), and leave to file a late notice of claim “is not appropriate for a patently meritless claim” (Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is denied.