Melgarejo v City of New York, 2024 NY Slip Op 02892 [227 AD3d 593]
May 28, 2024
Appellate Division, First Department
[*1]
Paez Melgarejo, Respondent,
v
City of New York et al., Appellants, et al., Defendants.
Anna J. Ervolina, Brooklyn (Theresa Frame of counsel), for appellants.
Matt Simon Law, New York (Matt C. Simon of counsel), for respondent.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about October 20, 2023, which, inter alia, granted plaintiff’s motion to renew and reargue his opposition to defendants’ motion to dismiss the complaint and, upon renewal, vacated the prior order dismissing the complaint, denied the motion to dismiss, and reinstated the complaint, unanimously modified, on the law, plaintiff’s motion to renew and reargue denied to the extent it sought reinstatement of the complaint as against defendant NYC Transit Authority, the complaint dismissed as against defendant NYC Transit Authority, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against defendant NYC Transit Authority.
In its prior order, the court dismissed the complaint as against both defendants on the ground that the notice of claim served on defendant NYC Transit Authority was untimely. The court properly granted plaintiff’s motion and reinstated plaintiff’s complaint as against defendant City of New York (City), as plaintiff’s notice of claim against the City was timely served on September 10, 2020 ( see Murphy v Harris , 210 AD3d 410 , 411-412 [1st Dept 2022] [discussing COVID-19 pandemic-related executive orders and tolling period]).
The court erred, however, in concluding that plaintiff’s hospitalization from the February 12, 2020 accident until April 11, 2020, rendered timely plaintiff’s January 25, 2021 notice of claim upon defendant NYC Transit Authority ( see Thompson v Metropolitan Transp. Auth. , 112 AD3d 912 , 914 [2d Dept 2013]; cf. CPLR 208 [a] [toll for periods of “disability because of infancy or insanity”]). Although physical incapacity may be properly considered as a reasonable excuse under General Municipal Law § 50-e (5) for the failure to timely file a notice of claim ( see e.g. Matter of Casale v City of New York , 95 AD3d 744 , 744 [1st Dept 2012]; Matter of Mandia v County of Westchester , 162 AD2d 217, 218 [1st Dept 1990]), it is relevant only upon timely motion for leave to file a late notice of claim “made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued” ( Pierson v City of New York , 56 NY2d 950, 954 [1982]; see General Municipal Law § 50-e [5]).
Here, plaintiff’s time to file a notice of claim or an application for leave to file a late notice of claim expired on December 28, 2020 and December 28, 2021, respectively ( see Murphy , 210 AD3d at 411-412). Plaintiff’s January 25, 2021 notice of claim upon defendant NYC Transit Authority was thus untimely, and plaintiff failed thereafter to move within the prescribed period for leave pursuant to General Municipal Law § 50-e (5) ( see e.g. Zayed v New York City Dept. of Design & Constr. , 157 AD3d 410 , 410 [1st Dept 2018]; Singleton v City of New York , 55 AD3d 447 , 447 [1st Dept 2008]).
Additionally, plaintiff’s arguments based on estoppel or alleged waiver are without merit ( see e.g. Keeney [*2] v New York City Hous. Auth. , 168 AD3d 581 , 582 [1st Dept 2019], lv denied 35 NY3d 901 [2020]; Badgett v New York City Health & Hosps. Corp. , 227 AD2d 127, 128 [1st Dept 1996]). Concur—Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ..