FIXTER, JANE v. COUNTY OF LIVINGSTON

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

856 CA 15-01956 PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

JANE FIXTER, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

COUNTY OF LIVINGSTON, LIVINGSTON COUNTY PROBATION DEPARTMENT, LIVINGSTON COUNTY SHERIFF DEPARTMENT, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.

JANE FIXTER, PLAINTIFF-APPELLANT PRO SE.

WEBSTER SZANYI LLP, BUFFALO (JEREMY COLBY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Livingston County (Evelyn Frazee, J.), entered March 11, 2015. The order granted the motion of defendants County of Livingston, Livingston County Probation Department and Livingston County Sheriff Department to dismiss the complaint against them and dismissed the complaint against those defendants.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting the pre- answer motion of the County of Livingston, the Livingston County Probation Department, and the Livingston County Sheriff Department (defendants) to dismiss the complaint against them based on plaintiff’s failure to serve a timely notice of claim. In the complaint, plaintiff sought damages for injuries sustained as a result of being wrongfully incarcerated following alleged violations of probation. We reject plaintiff’s contention that Supreme Court erred in granting defendants’ motion. Service of a notice of claim within 90 days after the claim arises is a condition precedent to commencement of a negligence action against a county or its officers, agents, servants, or employees (see County Law § 52 [1]; General Municipal Law § 50-e [1] [a]; see generally Davidson v Bronx Mun. Hosp., 64 NY2d 59, 61), but the plaintiff may seek and obtain leave to serve a late notice of claim (see General Municipal Law § 50-e [5]). Here, plaintiff concedes that she served an untimely notice of claim without first obtaining leave of the court. We therefore conclude that the untimely notice of claim was “a nullity, requiring dismissal of the complaint” (Wollins v New York City Bd. of Educ., 8 AD3d 30, 31; see Wall v Erie County, 26 AD3d 753, 753). Contrary to

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plaintiff’s contention, defendants’ failure to reject plaintiff’s late notice of claim did not constitute a waiver of the defense of failure to serve a timely notice of claim (see Wollins, 8 AD3d at 31; see generally Wall, 26 AD3d at 753).

Entered: October 7, 2016 Frances E. Cafarell Clerk of the Court