Guastamacchia v. New York City Department of Transportation

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), dated April 11, 1989, which denied her motion for leave to file a late notice of claim. Ordered that the order is affirmed, with costs. The plaintiff’s application for leave to file a late notice of claim was not made within one year and 90 days after the claim accrued. As a result, the Supreme Court properly concluded that it was without discretion to grant the relief requested (see, General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Binyard v City of New York, 151 AD2d 712). We note, moreover, that the plaintiff’s untimely application cannot be deemed to relate back to a prior motion (see, Matter of Lopez v City of New York, 123 AD2d 765; Thomas v City of New York, 102 AD2d 867; Stoute v City of New York, 91 AD2d 1043, appeal dismissed 59 NY2d 602). Thompson, J. P., Brown, Eiber and Miller, JJ., concur.