LAVALLIERE v. DEPARTMENT OF CORRECTION OF CITY OF NEW YORK (2003)

Order, Supreme Court, New York County (Marcy Friedman, J.), entered October 11, 2001, which granted the defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 The action was properly dismissed since the notice of claim was served more than 90 days after the accident and no motion for leave to serve a late notice of claim was made within the one-year-and-ninety-day statute of limitations (see Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331).   Neither defendant City's participation in pretrial discovery nor the court's prior resolution of certain issues of liability in plaintiff's favor precluded the City from raising the untimeliness of the notice of claim (see Camarella v. E. Irondequoit Cent. School Bd., 34 N.Y.2d 139, 356 N.Y.S.2d 553, 313 N.E.2d 29;  Frank v. City of New York, 240 A.D.2d 198, 658 N.Y.S.2d 293;  Acevedo v. City of New York Dept. of Transp., 227 A.D.2d 245, 642 N.Y.S.2d 291).   The statute of limitations was not tolled by plaintiff's incarceration (see CPLR 208;  and see Kelly v. State of New York, 57 A.D.2d 320, 323, 395 N.Y.S.2d 311, affd. 45 N.Y.2d 973, 412 N.Y.S.2d 891, 385 N.E.2d 628), and plaintiff failed to establish that the statute should be tolled on the ground of insanity.