SHAHID v. CITY OF NEW YORK (2008)

In an action, inter alia, to recover damages for racially-motivated harassment, the plaintiffs appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated May 1, 2006, which granted the defendant's motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e.

ORDERED that the order is affirmed, with costs.

 “Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against the defendant[ ] City of New York” (Laroc v. City of New York, 46 A.D.3d 760, 760, 847 N.Y.S.2d 677;  see General Municipal Law §§ 50-e[1] [a], 50-i[1] [a] ).  “Although the law permits late service of a notice of claim by leave of court under some circumstances, the plaintiffs were required to move for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5) within one year and 90 days of the date that the claims accrued” (id. at 761, 847 N.Y.S.2d 677;  see Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229;  Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566;  see also Friedman v. City of New York, 19 A.D.3d 542, 543, 796 N.Y.S.2d 529).   Here, the language of the notice of claim failed to set forth, among other things, the time when the alleged claim arose.   Although exhibits appended to the notice of claim provided several dates on which actions were allegedly taken by the defendant or its agent, the plaintiffs failed to serve their notice of claim within 90 days of the most recent among these dates, October 5, 2001.   Their late service of a notice of claim without leave of court was a nullity (see Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677;  Matter of White v. New York City Hous. Auth., 38 A.D.3d 675, 831 N.Y.S.2d 515;  Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133;  Santiago v. City of New York, 294 A.D.2d at 483, 742 N.Y.S.2d 566), and the plaintiffs did not submit a timely motion for leave to serve a late notice of claim.   Thus, the defendant's motion for summary judgment dismissing the complaint was properly granted (see Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677;  Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133;  Santiago v. City of New York, 294 A.D.2d at 483, 742 N.Y.S.2d 566).