MOTION TO AMEND NOTICE OF CLAIM FOR FALSE ARREST DENIED BECAUSE LATE

Court: Supreme Court, Appellate Division, First Department, New York

Case: Ronnie Harper v. The City of New York

Date: Feb. 14, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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PERMISSION DENIED TO FILE LATE NOTICE OF CLAIM AGAINST CITY OF NEW YORK FOR SIDEWALK ACCIDENT(Posted by Brooklyn accident attorney Gary E. Rosenberg on Feb 2, 2012)

MOTION TO AMEND "NOTICE OF CLAIM" AGAINST N.Y.C. HOUSING AUTHORITY TO CHANGE THEORY OF REASON FOR SLIP-AND-FALL ACCIDENT DENIED(Posted by Brooklyn accident attorney Gary E. Rosenberg on Jan 29, 2012)

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Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 31, 2011, which, in an action for personal injuries sustained when infant plaintiff was allegedly wrongfully arrested and detained, denied defendants' motion to dismiss the complaint, and granted plaintiffs' cross motion to deem the notice of claim timely filed nunc pro tunc, unanimously reversed, on the law, without costs, defendants' motion granted, and plaintiffs' cross motion denied. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

General Municipal law Sec. 50-e(5) only vests the court with the discretion to deem a notice of claim timely filed if the motion seeking such relief is made before the statute of limitations expires (Pierson v. City of New York, 56 N.Y.2d 950, 954-955, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982]; McKie v. LaGuardia Community Coll./CUNY, 85 A.D.3d 453, 928 N.Y.S.2d 635 [2011]). Here, plaintiffs' claims accrued on June 3, 1998, and the notice of claim was filed on September 2, 1998, one day after the 90 days allotted by General Municipal Law Sec. 50-e(1)(a). Moreover, the statute of limitations for tort claims against a municipal entity is one year and 90 days after the event occurred (see General Municipal Law Sec. 50-i[1]). Accordingly, plaintiffs' cross motion, dated August 30, 2010, should have been denied since it was brought well after the statute of limitations for their claims had expired (see McKie at 454, 928 N.Y.S.2d 635; Matter of Goffredo v. City of New York, 33 A.D.3d 346, 347, 830 N.Y.S.2d 11 [2006]).

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