Kokkinos v. Dormitory Authority of the State of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MILLER
• Citation: Kokkinos v. Dormitory Authority of the State of N.Y., 657 N.Y.S.2d 81, 238 A.D.2d 550 (N.Y. App. Div. 1997)
• Decision Date: 28 April 1997
• Parties: Penny KOKKINOS, Appellant, v. DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Respondent.

Page 81

657 N.Y.S.2d 81

238 A.D.2d 550

Penny KOKKINOS, Appellant, v. DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Respondent.

Supreme Court, Appellate Division Second Department.

April 28, 1997.

Davoli & Vesnaver, Rockville Centre (Paul G. Vesnaver and Jeena R. Belil, of counsel), for appellant.

Newman Fitch Lane Altheim Myers, P.C., New York City (Jan Kevin Myers and Vanessa M. Corchia, of counsel), for respondent.

Before MILLER, J.P., and JOY, GOLDSTEIN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), dated April 8, 1996, which granted the defendant's motion to dismiss the complaint and denied the plaintiff's purported cross motion for leave to serve a late notice of claim.

ORDERED that the order is affirmed, with costs.

On February 14, 1994, the plaintiff allegedly sustained physical injuries as a result of a fall on an icy sidewalk situated on the campus of Queens College. A notice of claim was served upon the City of New York within the requisite 90-day period (see, General Municipal Law § 50-e) but the plaintiff subsequently discovered that the City was not the proper defendant. On or about May 23, 1994, a notice of claim was served upon the defendant New York State Dormitory Authority (hereinafter the Dormitory Authority). This notice was served after the expiration of the 90-day period of limitations and without leave of the court. On this basis the court dismissed the action. We affirm.

Contrary to the plaintiff's contentions, the Supreme Court properly granted the Dormitory Authority's motion to dismiss the complaint for failure to comply with the notice of claim condition precedent set forth in General Municipal Law § 50-e (see, Cosgrove v. Romeo, 230 A.D.2d 886, 647 N.Y.S.2d 88; Greco v. Incorporated Vil. of Freeport, 223 A.D.2d 674, 637 N.Y.S.2d 191; Guillan v. Triborough Bridge & Tunnel Auth., 202 A.D.2d 472, 609 N.Y.S.2d 38). While the plaintiff's initial service upon the wrong municipal entity might have constituted a reasonable excuse so as to support an application for leave to serve a late notice of claim made within the available one year and 90-day period (see, General Municipal Law § 50-e[5] ), the plaintiff never made such a timely motion. The late service upon the Dormitory Authority was a nullity since it was made without leave of the court (see, De La Cruz v. City of New...