HEY v. TOWN OF NAPOLI (1999)

In September 1996 plaintiff moved for leave to serve a late notice of claim based on alleged damage to his property caused by defendant in October 1994.   Supreme Court granted the motion upon defendant's default.   Plaintiff thereafter served a summons and complaint upon defendant in May 1997.   Defendant moved to dismiss the complaint on the ground that the court lacked “subject matter jurisdiction” to grant plaintiff's motion for leave to serve a late notice of claim.

 The court erred in denying defendant's motion.   The court could not extend the 90-day period for serving a notice of claim beyond the time limited for the commencement of an action by plaintiff against defendant, a public corporation, which in this case was one year and 90 days (see, General Municipal Law § 50-e [5];  § 50-i;  Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Fraccola v. City of Utica, 77 A.D.2d 161, 164-165, 432 N.Y.S.2d 943).   The notice of claim requirement is a condition precedent to the commencement of a tort action against defendant and not a Statute of Limitations that must be pleaded as an affirmative defense (see, Perry v. City of New York, 238 A.D.2d 326, 327, 656 N.Y.S.2d 301;  Rodriguez v. City of New York, 169 A.D.2d 532, 533, 564 N.Y.S.2d 384).  Compliance with the notice of claim requirement “falls within the threshold jurisdiction of the court” (Matter of United Nations Dev. Corp. v. Norkin Plumbing Co., 45 N.Y.2d 358, 363, 408 N.Y.S.2d 424, 380 N.E.2d 253;  see, Brown v. Metropolitan Transp. Auth., 169 A.D.2d 570, 571, 564 N.Y.S.2d 424;  Taverna v. City of New York, 166 A.D.2d 314, 560 N.Y.S.2d 775).

 The court erred in determining that defendant was equitably estopped from raising the timeliness of plaintiff's motion.   Jurisdiction may not be created by estoppel (see, Matter of Jarrett, 230 A.D.2d 513, 516, 660 N.Y.S.2d 916, appeal dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 272, 686 N.E.2d 1367, lv. denied 91 N.Y.2d 804, 668 N.Y.S.2d 559, 691 N.E.2d 631, cert. denied sub nom. Johnson v. Doe, 524 U.S. 918, 118 S.Ct. 2301, 141L.Ed.2d 161;  Morrison v. Budget Rent A Car Sys., 230 A.D.2d 253, 260, 657 N.Y.S.2d 721;  Matter of Anthony J., 143 A.D.2d 668, 668-669, 532 N.Y.S.2d 924).

 Finally, we reject the contention of plaintiff that the order granting his motion for leave to file a late notice of claim constitutes the law of the case.   The law of the case doctrine does not apply to appellate review of a subordinate court's order (see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867, rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332;  Norton Co. v. C-TC 9th Ave. Partnership, 198 A.D.2d 696, 698, 603 N.Y.S.2d 364;  Post v. Post, 141 A.D.2d 518, 519, 529 N.Y.S.2d 341).   We therefore reverse the order, grant defendant's motion and dismiss the complaint.

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: