You are here: / / Complaint Can Not Be Deemed a Late Notice of Claim/Application to File...
, ,

Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)

The Second Department reversed Supreme Court’s determination that the complaint be deemed a late notice of claim against the city in a slip and fall case.  The court noted that Supreme Court did not have the power to accept the complaint as a late notice of claim, did not have the power to grant an application to file a late notice of claim after the statute of limitations had passed, the city was under no obligation to plead the absence of a notice of claim as a defense, and the city was not precluded from raising the defense by participating in discovery:

Here … the Housing Authority … was “under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement” … . “Furthermore . . . participation in pretrial discovery did not preclude [it] from raising the untimeliness of the notice of claim” … . In short, there is no evidence in the record demonstrating that the Housing Authority engaged in any misleading conduct which would support a finding of equitable estoppel … . Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of the Housing Authority or that such reliance caused the plaintiff to change her position to her detriment or prejudice … . Accordingly, the Supreme Court should have granted the Housing Authority’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a timely notice of claim, and denied that branch of the plaintiff’s cross motion which was to deem the complaint to be a late notice of claim and to deem it to have been timely served nunc pro tunc.  Feliciano v NYC Hous Auth, 2014 NY Slip OP 08807, 2nd Dept 12-17-14

 

You might also like
Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not on a Second Indictment
Partial Performance of an Oral Modification Will Allow Enforcement of the Oral Modification Even Where the Written Agreement Prohibits Oral Modification
Tenant Has Duty to Keep Premises Reasonably Safe
THE CRITERIA FOR THE HARSH REMEDY OF ATTACHMENT WERE NOT MET (SECOND DEPT).
LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH; THE CAR RAN OUT OF GAS AND PLAINTIFF’S DECEDENT PULLED OVER ONTO THE SHOULDER OF A TWO-LANE ROAD; SHE WAS STRUCK BY A HIT AND RUN DRIVER WHILE PUTTING GAS IN THE CAR WITH A GAS CAN (SECOND DEPT).
Child’s Out-of-Court Statements Not Sufficiently Corroborated for Admission Into Evidence
FATHER’S CHILD SUPPORT OBLIGATION DID NOT CEASE UPON MOTHER’S DEATH; MATERNAL GRANDFATHER’S PETITION SEEKING TO BE MADE THE CHILD-SUPPORT PAYEE RETROACTIVE TO MOTHER’S DEATH PROPERLY GRANTED (SECOND DEPT).
TRIAL JUDGE GAVE THE WRONG JURY INSTRUCTION CONCERNING THE LIABILITY OF AN INSURANCE COMPANY FOR DAMAGE WHEN THERE IS EVIDENCE THAT THE CAUSE OF THE DAMAGE COULD EITHER BE A CAUSE COVERED BY THE POLICY OR A CAUSE NOT COVERED BY THE POLICY, THE OVER $1.8 MILLION VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Although There Was Evidence the Plaintiff Failed to Yield the Right-of-Way,... Adverse Interest Exception to In Pari Delicto Defense May Apply—The Two...