Nappi v. County of Suffolk

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: Nappi v. County of Suffolk, 914 N.Y.S.2d 247, 79 A.D.3d 990 (N.Y. App. Div. 2010)
• Decision Date: 21 December 2010
• Parties: Joseph NAPPI, etc., et al., respondents, v. COUNTY OF SUFFOLK, appellant.

914 N.Y.S.2d 247

79 A.D.3d 990

Joseph NAPPI, etc., et al., respondents,

v.COUNTY OF SUFFOLK, appellant.

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

Dec. 21, 2010.

Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for appellant.

David S. Kritzer, Huntington, N.Y., for respondents.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, negligent infliction of emotional distress, and wrongful death, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated April 16, 2010, which granted the plaintiffs' motion pursuant to General Municipal Law § 50-e(5) to deem their late notice of claim on behalf of the plaintiff Joseph Nappi, as administrator of the estate of Angelica Nappi, and their late notice of claim on behalf of the infant plaintiff, Nicolette Nappi, timely served nunc pro tunc.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion to deem their late notice of claim on behalf of the plaintiff Joseph Nappi, as administrator of the estate of AngelicaNappi, and their late notice of claim on behalf of the infant plaintiff, Nicolette Nappi, timely served nunc pro tunc is denied.

That branch of the plaintiffs' motion which was to deem their late notice of claim on behalf of the plaintiff Joseph Nappi, as administrator of the estate of Angelica Nappi, with respect to the claim alleging wrongful death, to be timely served upon the defendant, nunc pro tunc, should have been denied. The plaintiffs failed to serve a notice of claim within 90 days from the appointment of a representative of the decedent's estate (see General Municipal Law § 50-e[1][a]; Mandel v. New York City Health & Hosps. Corp., 43 A.D.3d 1005, 841 N.Y.S.2d 468; Mack v. City of New York, 265 A.D.2d 308, 696 N.Y.S.2d 206), and their late service without leave of court was a nullity ( see Maxwell v. City of New York, 29 A.D.3d 540, 815 N.Y.S.2d 133; Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566; Henry v. Aguilar, 282 A.D.2d 711, 724 N.Y.S.2d 325). The plaintiffs were required to move within two years after the death of the decedent for leave to serve a late notice of claim with respect to the claim alleging wrongful death ( see General Municipal Law § 50-i[1]; Heslin v. County of Greene, 14 N.Y.3d 67, 72, 896 N.Y.S.2d 723, 923 N.E.2d 1111; Collins v. City of New York, 55 N.Y.2d 646, 647-648, 446 N.Y.S.2d 258, 430 N.E.2d 1311; Miller v. County of Sullivan, 36 A.D.3d 994, 996, 827 N.Y.S.2d 750; Guillan v. Triborough Bridge & Tunnel Auth., 202 A.D.2d 472, 609 N.Y.S.2d 38). Since the plaintiffs failed to make a timely application for such relief, the court lacked the power to deem the late notice of claim on behalf of the estate with respect to the claim alleging wrongful death to be timely served, nunc pro tunc ( see Pierson v. City of New York, 56 N.Y.2d 950, 956, 453 N.Y.S.2d 615, 439 N.E.2d 331; Adam H. v. County of Orange, 66 A.D.3d 739, 740, 887 N.Y.S.2d 605; Matter of N.M. v. Westchester County Health Care Corp., 10 A.D.3d 421, 423, 781 N.Y.S.2d 370;Jones v. City of New York, 300 A.D.2d 359, 751 N.Y.S.2d 522; Matter of Bulger v. Nassau County Med. Ctr., 266 A.D.2d 212, 697 N.Y.S.2d 345).

That branch of the plaintiffs' motion which was to deem their notice of claim on behalf of the infant plaintiff with respect to the claim to recover damages for personal injuries and negligent infliction of emotional distress to be timely served, nunc pro tunc, should also have been denied. The plaintiffs failed to establish that the defendants received actual timely notice of the essential facts constituting their claim ( see Matter of Mitchell v. City of New York, 77 A.D.3d...