McGARTY v. CITY OF NEW YORK (2007)

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 12, 2007, which granted defendant's cross motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.

Executive Order 113.7 (9 NYCRR 5.113.7), temporarily suspending, inter alia, local laws and ordinances establishing limitations of time for the filing or service of, inter alia, any notice or process “that the court lacks authority to extend through the exercise of discretion,” does not apply to notices of claim required as a condition precedent to suit against defendant under General Municipal Law § 50-i.   As the motion court explained, the Executive Order does not apply because “the statutory framework has built into it a mechanism by which a court can exercise its discretion” to extend the 90-day period for filing a notice of claim (General Municipal Law § 50-e[5];  cf. CB Richard Ellis v. JLC Holdings, 306 A.D.2d 870, 761 N.Y.S.2d 899 [2003] ).   Plaintiff's service of a late notice of claim without court leave 91 days after accrual of his claim was a nullity (Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637 [2004] ), and his failure to seek a court order excusing such lateness within one year and 90 days after accrual of his claim requires dismissal of the action (see id., citing, inter alia, Hochberg v. City of New York, 99 A.D.2d 1028, 473 N.Y.S.2d 820 [1984], affd. 63 N.Y.2d 665, 479 N.Y.S.2d 524, 468 N.E.2d 706 [1984] ).   We have considered plaintiff's other contentions and find them unavailing.