Lavalliere v. Department of Correction , 759 N.Y.S.2d 8 ( 2003 )

Order, Supreme Court, New York County (Marcy Friedman, J.), entered October 11, 2001, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed since the notice of claim was served more than 90 days after the accident and no motion for leave to serve a late notice of claim was made within the one-year-and-90-day statute of limitations (see Pierson v City of New York, 56 NY2d 950 [1982]). Neither defendant City’s participation in pretrial discovery nor the court’s prior resolution of certain issues of liability in plaintiffs favor precluded the City from raising the untimeliness of the notice of claim (see Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139 [1974]; Frank v City of New York, 240 AD2d 198 [1997]; Acevedo v City of N.Y. Dept. of Transp., 227 AD2d 245 [1996]). The statute of limitations was not tolled by plaintiffs incarceration (see CPLR 208; and see Kelly v State of New York, 57 AD2d 320, 323 [1977], affd 45 NY2d 973 [1978]), and plaintiff failed to establish that the statute should be tolled on the ground of insanity. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.