HPM&B Obtains Dismissal

HPM&B successfully opposed plaintiff’s application for leave to file a late notice of claim.  After their order to show cause for leave to file a late notice of claim was denied in Queens County for improper venue, plaintiffs filed a summons and complaint and an OSC for leave to file a late notice of claim in New York County. In rejecting plaintiffs’ procedural arguments, Justice George Silver opined that the “Giblin toll” was inapplicable and the statutory period was not tolled during the pendency of the Queens County OSC. Furthermore, the Court concurred with defendants’ arguments on the merits. Justice Silver found that plaintiffs failed to meet their burden under GML § 50-e by failing to show 1) that defendants had actual notice, 2) a reasonable excuse, 3) a mental, emotional, or psychological incapacity, 4) facts sufficient to shift the burden on defendants on the issue of prejudice, and 5) that the case had merit. As a result, Justice Silver denied plaintiffs’ application in its entirety and granted defendant’s cross motion to dismiss the summons and complaint with prejudice.