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Hall v. City of New York11/20/2003
their notice of claim since their motion for such relief was not made until after the . . . Statute of Limitations had run, and it makes no difference that plaintiffs, without court leave, had served the notice of claim within the limitations period" (id.; see also Davis v City of New York, 250 AD2d 368).
The cases cited by plaintiff are inapposite, as they do not deal with applications made after the statute of limitations had expired (see e.g. Gherardi v City of New York, 294 AD2d 101; Johnson v New York City Transit Authority, 278 AD2d 83; Horowitz (*3)v New York City School Construction Authority, 168 Misc 2d 598).
The fact that SCA engaged in pretrial discovery does not constitute a waiver of the requirements regarding the time and manner of service of the notice of claim, nor does it preclude SCA from raising the untimeliness of the notice of claim after the statute of limitations had expired (Lavalliere v Dept of Correction, 304 AD2d 370). Moreover, in this case, plaintiff's assertion that SCA should be estopped from claiming the defense of an untimely notice of claim because it allegedly "shielded itself from the public making identification impossible" (see Horowitz v New York City School Construction Authority, 168 Misc 2d 598) is unavailing, since plaintiff concededly was notified by New York City in January 2002 that SCA was a potential party responsible for plaintiff's loss.
Because the court lacked discretion to grant plaintiff's application to deem the service of his notice of claim to be timely, the order of Supreme Court is reversed; SCA's motion to dismiss the complaint as to it is granted; and plaintiff's cross motion is denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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