FORNABAIO v. The New York City Housing Authority, Respondent-Appellant. (2007)

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 26, 2006, which, to the extent appealed from, on renewal of a prior order, granted the petition to serve a late notice of claim, unanimously reversed, on the law, without costs, the motion to renew and the petition denied.

The motion court lacked discretion to grant petitioner leave to file a late notice of claim, since his reargument/renewal motion was made 12 days after the 1-year-and-90-day limitations period had expired (Matter of Goffredo v. City of New York, 33 A.D.3d 346, 347, 830 N.Y.S.2d 11 [2006] ).   Nor is such an untimely motion permitted to relate back to the date when the originally timely motion was made (id. at 348, 830 N.Y.S.2d 11;  accord Matter of Asaro v. City of New York, 167 A.D.2d 130, 561 N.Y.S.2d 218 [1990], lv. dismissed 77 N.Y.2d 956, 570 N.Y.S.2d 486, 573 N.E.2d 574 [1991] ).   Moreover, denial of leave is warranted because the record before us is devoid of any suggestion that NYCHA bears liability for petitioner's injury (Williams v. City of New York, 290 A.D.2d 354, 736 N.Y.S.2d 228 [2002] ).