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Frank CROCE, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: January 19, 2010

MAZZARELLI, J.P., SAXE, ACOSTA, DeGRASSE, MANZANET-DANIELS, JJ. Ameduri, Galante & Friscia, LLP, Staten Island (Marvin Ben-Aron of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered December 12, 2008, which granted defendants' motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim, and denied plaintiff's cross motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

Plaintiff's service of an admittedly late notice of claim was a nullity (McGarty v. City of New York, 44 AD3d 447, 448 [2007] ), and his failure to seek a court order excusing such lateness within the time limited for commencement of the action (General Municipal Law § 50-e[5] ), i.e., within one year and 90 days after the happening of the accident (General Municipal Law § 50-i[1][c] ), requires dismissal of the action (McGarty, supra ). We reject plaintiff's argument that, by virtue of CPLR 306-b, his time to seek leave to serve a late notice of claim was extended until 120 days after the timely filing of his summons and complaint. The argument rests on the incorrect premise that an action is commenced upon service, not filing, of a summons and complaint (see CPLR 304[a] ).

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