Reaves v. City of New York
| Decision Date | 21 November 1991 |
| Citation | 177 A.D.2d 437,576 N.Y.S.2d 280 |
| Parties | Sacha REAVES, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents, and Department of Parks and Recreation, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Before WALLACH, J.P., and KUPFERMAN, ROSS and SMITH, JJ.
Order, Supreme Court, New York County (Leonard N. Cohen, J.), entered August 29, 1990, which, inter alia, granted motions by defendants New York City Housing Authority and City of New York to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff, allegedly injured in a 1980 accident in a City playground, reached the age of majority in September 1988. Under General Municipal Law § 50-e(5), she had one year and 90 days after reaching the age of majority to seek leave to file a late notice of claim, a limitation applicable to actions against the defendant Housing Authority pursuant to Public Housing Law § 157(2). Plaintiff's mother, in a prior action on her behalf, unsuccessfully sought leave to file a late notice of claim.
Plaintiff, in this action, has neither filed a notice of claim nor sought leave to do so.
Plaintiff was required to allege in her complaint compliance with the notice of claim condition precedents to suit (Giblin v. Nassau County Medical Center, 61 N.Y.2d 67, 471 N.Y.S.2d 563, 459 N.E.2d 856). Such compliance is part of the plaintiff's substantive cause of action (E. Williamson Roofing & Sheet Metal Co., Inc. v. Town of Parish, 139 A.D.2d 97, 106, 530 N.Y.S.2d 720), and the failure to comply is not an affirmative defense to be asserted by defendants (Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384). Thus, plaintiff's failure to allege a timely filing of a notice of claim or to move within a year and ninety days after attaining her majority rendered her complaint legally insufficient and justified its dismissal for failure to state a cause of action (Caruso v. City of Buffalo Urban Renewal Agency, 159 A.D.2d 996, 553 N.Y.S.2d 254).
We have considered the plaintiff's other arguments, and find them to be without merit.
To continue reading
Request your trial
-
Williams v. Mta Bus Co.
...e.g. Barnaman v. New York City Health & Hosp. Corp., 90 A.D.3d 588, 589, 934 N.Y.S.2d 443 [2d Dept.2011];Reaves v. City of New York, 177 A.D.2d 437, 576 N.Y.S.2d 280 [1st Dept.1991] [“the failure to comply is not an affirmative defense to be asserted by defendants”].) “General Municipal Law......
-
Florentino v. Nokit Realty Corp.
...Dept. 2002]; Leon v. New York City Hous. Auth., 214 A.D.2d 455, 455, 625 N.Y.S.2d 212 [1st Dept. 1995]; Reaves v. City of New York, 177 A.D.2d 437, 437, 576 N.Y.S.2d 280 [1st Dept. 1991]; Trio Bronx Inc. v. Hernandez, 2009 WL 3612135 [Sup. Ct. N.Y. Co. 2009] ). Defendants do not dispute tha......
-
Jeshurin v. Liberty Lines Transit, Inc.
...to state a cause of action" (see, e.g., Boyle v. Kelley, 42 N.Y.2d 88, 91, 396 N.Y.S.2d 834, 365 N.E.2d 866; Reaves v. City of New York, 177 A.D.2d 437, 576 N.Y.S.2d 280; Caruso v. City of Buffalo Urban Renewal Agency, 159 A.D.2d 996, 553 N.Y.S.2d 254; Williamson Roofing & Sheet Metal Co. v......
-
Jimenez v. City of New York, 2009 NY Slip Op 31238(U) (N.Y. Sup. Ct. 6/5/2009)
...as an affirmative defense). Failure to comply with the notice of claim requirements may be raised at any time. Reaves v. City of New York, 177 A.D.2d 437 (1st Dep't 1991). Accordingly, as Jimenez failed timely to file a notice of claim for his false arrest cause of action, the City's motion......