WALL v. ERIE COUNTY (2006)

 On April 4, 2003, plaintiff allegedly slipped and fell on ice in the parking lot of defendant Erie County Medical Center.   No notice of claim was served within 90 days of the accident as required by General Municipal Law § 50-e(1)(a), but Supreme Court granted plaintiff's application for leave to serve a late notice of claim (see § 50-e[5] ).   In appeal No. 1, we conclude that the court properly granted defendants' motion to dismiss the complaint based upon the failure of plaintiff to serve her notice of claim within one year and 90 days of the accident as required by General Municipal Law § 50-i(1)(c).  Plaintiff's service of the summons and complaint within the limitations period does not excuse the failure to serve a notice of claim within that period (see Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637;  Davis v. City of New York, 250 A.D.2d 368, 369-370, 673 N.Y.S.2d 79).   Further, plaintiff's earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted (see Wollins, 8 A.D.3d at 31, 777 N.Y.S.2d 637;  Mack v. City of New York, 265 A.D.2d 308, 309, 696 N.Y.S.2d 206, lv. denied 94 N.Y.2d 763, 708 N.Y.S.2d 51, 729 N.E.2d 708).   Contrary to plaintiff's further contention, defendants are not precluded from seeking dismissal of the complaint based upon their participation in discovery (see Wollins, 8 A.D.3d at 31, 777 N.Y.S.2d 637;  Hall v. City of New York, 1 A.D.3d 254, 256, 768 N.Y.S.2d 2) or their request for an extension of time to answer the complaint (see Hall v. Niagara Frontier Transp. Auth., 206 A.D.2d 853, 615 N.Y.S.2d 205).

In appeal No. 2, we conclude that the court properly denied plaintiff's “re-petition” seeking leave to serve a late notice of claim after the complaint had been dismissed.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: