Mazzola v. Kelly

—In an action to recover damages for personal injuries, the defendant Commack Union Free School District appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated October 19, 2000, which denied its motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and granted the plaintiffs cross motion pursuant to General Municipal Law § 50-e (5) for leave to file a late notice of claim. Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is dismissed insofar as asserted against the appellant, and the action' against the remaining defendants is severed. The plaintiff was born on March 19, 1981. She commenced this action on March 17, 2000, against, among others, the appellant, Commack Union Free School District (hereinafter the District), to recover damages for injuries arising out of several incidents which occurred between the years 1992 through 1994, when she was an infant. The District moved to dismiss the complaint insofar as asserted against it on the ground that the plaintiff never served it with a notice of claim. In response, the plaintiff, by notice of motion dated June 23, 2000, cross-moved, inter alia, for leave to serve a late notice of claim. By order dated October 19, 2000, the Supreme Court denied the District’s motion and granted the plaintiffs cross motion. We reverse. The plaintiff failed to make an application for leave to serve a late notice of claim within one year and 90 days of when her infancy ended. Accordingly, the Supreme Court lacked the power to extend her time to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc (see, Pierson v City of New York, 56 NY2d 950, 954; Noel v Shahbaz, 274 AD2d 381, 382; Jackson v New York City Tr. Auth., 274 AD2d 501; Hey v Town of Napoli, 265 AD2d 803). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.