Armstrong v. New York Convention Center Operating Corp. , 610 N.Y.S.2d 267 ( 1994 )

—Order, Supreme Court, New York County (William Davis, J.), entered on or about December 14, 1993, which granted defendant’s motion for summary judgment and denied plaintiffs’ cross motion for leave to serve a late notice of claim nunc pro tunc, unanimously affirmed, with costs.

The court lacked the discretion to excuse plaintiffs’ late service of their notice of claim since their motion for such relief was not made until after the one-year Statute of Limitations had run, and it makes no difference that plaintiffs, without court leave, had served the notice of claim within the limitations period. (Pierson v City of New York, 56 NY2d 950.) Jeshurin v Liberty Lines Tr. (191 AD2d 412) is distinguishable, since here defendant’s answer, served almost two months prior to the expiration of the limitations period, provided plaintiffs with clear notice that their complaint was dismissible for failure to timely serve a notice of claim. Concur— Carro, J. P., Kupferman, Asch, Nardelli and Williams, JJ.