SINGLETON v. CITY OF NEW YORK (2008)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered June 7, 2007, which, in an action for personal injuries, denied defendant City of New York's motion to dismiss the complaint for failure to file a timely notice of claim, and granted plaintiff's cross motion to deem the notice of claim timely filed, and order, same court and Justice, entered June 12, 2007, which denied the motion of defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority to dismiss the complaint for failure to file a timely notice of claim, unanimously reversed, on the law, without costs, defendants' motions granted, plaintiff's cross motion denied, and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.

Dismissal of the complaint is warranted, since plaintiff's notice of claim was not served within 90 days of the date on which her claim arose (General Municipal Law § 50–e[1][a] ), and she failed to timely move for leave to serve a late notice of claim within one year and 90 days after the claim arose (General Municipal Law § 50–e[5];  Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ).  Defendants were not required to raise the late filing as an affirmative defense (see Maxwell v. City of New York, 29 A.D.3d 540, 815 N.Y.S.2d 133 [2006] ), nor were they estopped from seeking dismissal of the complaint on this ground (see Walker v. New York City Health & Hosps. Corp., 36 A.D.3d 509, 828 N.Y.S.2d 365 [2007];  Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384 [1991] ).