Zayed v. New York City Department of Design & Construction

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered December 28, 2015, which, among other things, denied defendants’ motion to dismiss the complaint for failure to comply with CPLR 217-a and the notice of claim requirements of General Municipal Law §§ 50-e (5) and 50-i (1), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Although plaintiff successfully sought leave to file a late notice of claim before expiration of the statute of limitations, and was granted a 30-day extension of time to do so, he did not avail himself of that opportunity and, by any calculation, the one-year-and-90-day statute of limitations then expired (see CPLR 217-a; General Municipal Law §§ 50-e [5]; 50-i [1]).

The motion court was not permitted to grant an extension after the statute of limitations had run since, to do so, would render meaningless the portion of General Municipal Law § 50-e (5) that expressly prohibits the court from doing so (Pierson v City of New York, 56 NY2d 950 , 955 [1982]). CPLR 2004 cannot be used to extend the statute of limitations (Rybka v New York City Health & Hosps. Corp., 263 AD2d 403 , 406 [1st Dept 1999]; CPLR 201; see also Pierson, 56 NY2d at 954 ).

Concur—Manzanet-Daniels, J.P., Mazzarelli, Andrias, Gesmer and Oing, JJ.