Ferrara v. Terryville Fire District , 110 A.D.2d 749 ( 1985 )

Plaintiff William Ferrara, a volunteer fire fighter, sustained physical injuries while he was aiding respondent, a neighboring fire district, in controlling a fire on December 18, 1981. It was later discovered that the fire in which Mr. Ferrara was injured was deliberately set by a volunteer fire fighter working for respondent. Plaintiffs alleged that respondent permitted the arsonist to join its membership with full knowledge that he had a previous felony conviction for arson. Thus, plaintiff sought to hold respondent liable for the negligent act of hiring an employee who was known to be an arsonist.

On February 8, 1983, plaintiffs attempted to serve a notice of claim upon respondent, which was rejected as untimely. Thereafter, by notice of motion dated June 20,1983, plaintiffs moved, in effect, for an order permitting them to serve the late notice of claim upon respondent.

Because the injury to Mr. Ferrara occurred on December 18, 1981, at the time the motion was made, more than one year and 90 days had elapsed from the time the cause of action accrued (see, Sexstone v City of Rochester, 32 AD2d 737). As a result, the court was without discretion to grant the relief (see, General Municipal Law §§ 50-e, 50-i; Pierson v City of New York, 56 NY2d 950). Accordingly, the order denying plaintiffs’ motion is affirmed. Mangano, J. P., Brown, Niehoff and Lawrence, JJ., concur.