All Is Lost Except the Legal Malpractice Case
Plaintiff has an excessive force claim against the NYCPD. Arrest is on 9/15/09. ACD is given on 3/25/10. Plaintiff retains law firm on 10/27/10. On 5/16/11 law firm returns case to client and says they will not handle. No notice of claim is ever filed, and no real motion seeking leave to file a late notice of claim is ever made. Result?
"In the motion sub judice, the City seeks (1) dismissal of plaintiff=s state law claims based on her failure to serve a notice of claim and failure to timely commence the action within the one year-and-ninety-day statute of limitations set forth in General Municipal Law '50-i(1)(c), and (2) dismissal of any federal claims predicated on the violation of USC '1983 as barred by the three-year statute of limitations applicable to such actions (see Saunders v. State of New York, 629 FSupp 1067, 1070 [N.D. N.Y. 1986]). "
"It is a condition precedent to the maintenance of any tort action against the City that a Notice of Claim be served upon it within 90 days after a claim arises (see General Municipal Law '50-e[a]; 50-i[a]). Of course, it is statutorily provided that a court may, in the exercise of its discretion, extend the 90-day time limit (see General Municipal Law '50-e; "
"Here, not only has plaintiff failed to serve a Notice of Claim upon the City, but she has likewise failed to move for leave to serve a late Notice of Claim as authorized by General Municipal Law '50-e(5). Moreover, although a certain level of laxity in matters of procedure traditionally have been overlooked where a party is proceeding pro se, plaintiff at bar has provided this Court with no proof whatsoever of the City=s acquisition of actual knowledge of the essential facts constituting her claim within 90 days after the claim arose or within a reasonable time thereafter@ (General Municipal Law '50-e)."
"Thus, this Court has no alternative but to dismiss her action against the City as barred by
the Statute of Limitations in General Municipal Law '50-i(1)(c). Nevertheless, it should be noted
that plaintiff"s malpractice action against her attorneys Jason Leventhal and Klein is still pending."