FRANK v. Diva Jewelry, et al., Defendants. (1997)

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about April 24, 1996, which granted defendant City's motion for summary judgment dismissing the complaint on the grounds that plaintiff's notice of claim had not been timely served and that the City had no prior notice of the defect that allegedly caused plaintiff's injuries, unanimously affirmed, without costs.

 The action was properly dismissed on the basis that notice of claim was not served until the 91st day after the accident and no motion for leave to serve a late notice of claim was made within the one-year-ninety-day Statute of Limitations (Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331).   The City's conduct of a General Municipal Law § 50-h hearing and participation in years of litigation did not preclude it from first raising the untimeliness of the notice of claim after the action was well advanced, and it was free to do so up until the trial (Velez v. City of New York, 157 A.D.2d 370, 374, 556 N.Y.S.2d 537, lv. denied 76 N.Y.2d 715, 564 N.Y.S.2d 718, 565 N.E.2d 1269;  Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384).   In addition, the fact that the most recent Big Apple map on file with the Department of Transportation did not show a defect at the location where plaintiff allegedly fell was correctly held to be an alternative ground for dismissal (Katz v. City of New York, 87 N.Y.2d 241, 638 N.Y.S.2d 593, 661 N.E.2d 1374).

MEMORANDUM DECISION.