Nieves v. New York City Housing Authority

— Order, Supreme Court, New York County (Judith J. Gische, J.), entered June 10, 2011, which, to the extent appealed from as limited by the briefs, granted defendant’s motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim, unanimously affirmed, without costs. Plaintiffs service of an admittedly late notice of claim “was a nullity” (McCarty v City of New York, 44 AD3d 447, 448 [2007]), and her failure to seek a court order excusing such lateness within one year and 90 days after the date of the accident requires dismissal of the action (id.; see General Municipal Law § 50-e [5]; § 50-i [1] [c]). We reject plaintiffs argument that defendant verbally agreed to waive any defense based upon her untimely notice of claim, and that such agreement was memorialized in the parties’ stipulation. We have considered plaintiffs remaining contentions and find them unavailing. Concur — Tom, J.P., Andrias, Friedman, Moskowitz and Renwick, JJ.