MATEO v. CITY OF NEW YORK (1997)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered November 22, 1995, which denied plaintiff's motion to file a late notice of claim, and order, same court and Justice, entered September 23, 1996, which granted plaintiff's motion to renew and reargue the prior order and thereupon adhered thereto, unanimously affirmed, without costs.

Plaintiff seeks recovery for injuries suffered when the automobile he was driving, which was travelling the wrong way on 39th Street in Manhattan, was involved in a collision with a bus travelling northbound on 10th Avenue.

 Plaintiff failed to provide an adequate excuse for the delay in moving for permission to file a notice of claim some seven months after the date of the accident on which the claim is based.   Neither the police report prepared in connection with plaintiff's accident nor the published news reports regarding a different accident that took place at or near the same location five months after plaintiff's accident made any mention of the signs or traffic lights at the intersection of 11th Avenue and 39th Street.   Those reports could not possibly have served as notice that plaintiff would eventually claim that there was a casual connection between the allegedly negligent placement of those lights and signs and his injuries sustained in the accident at 39th Street and 10th Avenue.

 In reference to plaintiff's motion to renew, since plaintiff's initial application for permission to file a late notice of claim was denied without leave to renew, the Statute of Limitations toll that runs from the time a plaintiff seeks leave to serve a late notice of claim until the order granting that relief goes into effect (see, Giblin v. Nassau County Med. Ctr., 61 N.Y.2d 67, 471 N.Y.S.2d 563, 459 N.E.2d 856) was inapplicable to extend his time to move to renew (see, Dominguez v. New York City Health & Hosp. Corp., 178 A.D.2d l86, 576 N.Y.S.2d 872).   Nor does the motion to renew relate back to the original motion for Statute of Limitations purposes (id.;  Asaro v. City of New York, l67 A.D.2d l30, 561 N.Y.S.2d 218 appeal dismissed, lv. denied 77 N.Y.2d 956, 570 N.Y.S.2d 486, 573 N.E.2d 574;  Rieara v. City of New York Dept. of Parks & Recreation, 156 A.D.2d 206, 207, 548 N.Y.S.2d 466).   The application was, therefore, untimely.   To the extent that plaintiff's motion was for reargument, we find that the court properly adhered to its initial determination.

MEMORANDUM DECISION.