Wall v. Erie County

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered November 16, 2004 in a personal injury action. The order granted defendants’ motion to dismiss the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: On April 4, 2003, plaintiff allegedly slipped and fell on ice in the parking lot of defendant Erie County Medical Center. No notice of claim was served within 90 days of the accident as required by General Municipal Law § 50-e (1) (a), but Supreme Court granted plaintiffs application for leave to serve a late notice of claim (see § 50-e [5]). In appeal No. 1, we conclude that the court properly granted defendants’ motion to dismiss the complaint based upon the failure of plaintiff to serve her notice of claim within one year and 90 days of the accident as required by General Municipal Law § 50-i (1) (c). Plaintiffs service of the summons and complaint within the limitations period does not excuse the failure to serve a notice of claim within that period (see Wollins v New York City Bd. of Educ., 8 AD3d 30, 31 [2004]; Davis v City of New York, 250 AD2d 368, 369-370 [1998]). Further, plaintiffs earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted (see Wollins, 8 AD3d at 31; Mack v City of New York, 265 AD2d 308, 309 [1999], lv denied 94 NY2d 763 [2000]). Contrary to plaintiffs further contention, defendants are not precluded from seeking dismissal of the complaint based upon their participation in discovery (see Wollins, 8 AD3d at 31; Hall v City of New York, 1 AD3d 254, 256 [2003]) or their request for an extension of time to answer the complaint (see Hall v Niagara Frontier Transp. Auth., 206 AD2d 853 [1994]). [754] In appeal No. 2, we conclude that the court properly denied plaintiffs “re-petition” seeking leave to serve a late notice of claim after the complaint had been dismissed. Present— Hurlbutt, J.P., Scudder, Gorski, Green and Hayes, JJ.