Late Notice of Claim

Since plaintiff did not serve the notice of claim within 90 days of the alleged injury, as required by General Municipal Law § 50-e[1][a], the First Department dismissed the complaint, in McCrae v. City of New York, which was decided on October 2, 2007. The court noted that plaintiff did not move for leave to file a late notice of claim within one year and 90 days, pursuant to General Municipal Law § 50-e[5]; § 50-i[1].

"The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action."