Warren v. Baldwin Sch. Dist.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: O'BRIEN
• Citation: Warren v. Baldwin Sch. Dist., 721 N.Y.S.2d 289 (N.Y. App. Div. 2001)
• Decision Date: 07 February 2001
• Parties: (A.D. 2 Dept. 2001) Mark Warren, appellant, v. Baldwin Union Free School District, et al., respondents. 2000-06957 Submitted -

Page 289

721 N.Y.S.2d 289 (A.D. 2 Dept. 2001)

Mark Warren, appellant, v. Baldwin Union Free School District, et al., respondents.

2000-06957

SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT

Submitted - February 7, 2001

March 5, 2001

Mintz and Schaffer, Freeport, N.Y. (John F. Clennan of counsel), for appellant.

Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered June 9, 2000, which granted the defendants' motion to dismiss the complaint and denied his cross motion for leave to serve a late notice of claim.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly dismissed the complaint on the ground that the plaintiff failed to timely serve a notice of claim (see, Mills v County of Monroe, 59 N.Y.2d 307, cert denied 464 U.S. 1018; Hibbert v Suffolk County Dept. of Probation, 267 A.D.2d 205). Moreover, the plaintiff's cross motion for leave to serve a late notice of claim was made more than one year and 90 days after the accrual date of the claim (see, General Municipal Law §§ 50-e[5], 50-i). Therefore, the Supreme Court did not have authority to grant the cross motion (see, General Municipal Law § 50-e[5]; Hibbert v Suffolk County Dept. of Probation, supra, Matter of Turner v New York City Hous. Auth., 243 A.D.2d 636; Carr v City of New York, 176 A.D.2d 779).

O'BRIEN, J.P., FRIEDMANN, GOLDSTEIN and SMITH, JJ., concur.