The opinion
Radjeva v City of New York
2025 NY Slip Op 34395(U)
November 18, 2025
Supreme Court, New York County
Docket Number: Index No. 157420/2024
Judge: Hasa A. Kingo
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
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INDEX NO. 157420/2024
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 11/18/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
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ALEKSANDRA RADJEVA,
MOTION DATE N/A
Plaintiff,
MOTION SEQ. NO. 001
-v-
CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF TRANSPORTATION, NEW YORK STATE URBAN DECISION + ORDER ON
DEVELOPMENT CORPORATION MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 23, 24, 25, 26, 27,
28, 29, 30, 31, 32, 33, 34, 39, 40, 42
were read on this motion to DISMISS .
Upon the foregoing papers, defendant New York State Urban Development Corporation
d/b/a Empire State Development Corporation (“ESD”) moves for an order: (1) dismissing
plaintiff’s amended complaint as against ESD for failure to serve a notice of claim; (2) in the
alternative, granting ESD leave pursuant to CPLR § 3025 (b) to amend its answer to assert an
affirmative defense based on the expiration of the statute of limitations; (3) dismissing the
amended complaint as against ESD as time-barred under the applicable one-year-and-ninety-day
limitations period; and (4) granting such other and further relief as the court deems just and proper.
Plaintiff opposes.
BACKGROUND AND PROCEDURAL HISTORY
This personal-injury action arises from a trip-and-fall accident alleged to have occurred on
May 17, 2023, on the sidewalk on Ninth Avenue between West 31st Street and West 33rd Street
in Manhattan. Plaintiff alleges she was caused to trip and fall due to a defective condition in the
sidewalk and sustained personal injuries as a result of the negligence of one or more of the
defendants.
Plaintiff commenced this action by filing a summons and complaint against the City of
New York and the New York City Department of Transportation (“NYCDOT”) on August 13,
2024. The City and NYCDOT interposed an answer on September 25, 2024.
On October 14, 2024, plaintiff filed a supplemental summons and amended complaint
adding ESD as a defendant. The City and NYCDOT answered the amended complaint on
November 26, 2024. ESD interposed its verified answer on February 26, 2025, which included,
inter alia, an affirmative defense alleging that plaintiff failed to comply with “relevant laws,
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statutes, ordinances and/or other applicable regulations concerning pre-suit notice (e.g., notice of
claim)” and failed to submit to required municipal hearings.
It is undisputed on this record that plaintiff did not serve any notice of claim upon ESD. It
is further undisputed that plaintiff first commenced an action against ESD by filing the
supplemental summons and amended complaint on October 14, 2024—more than one year and
ninety days after the May 17, 2023 accident.
ESD now moves to dismiss based on plaintiff’s failure to serve a timely notice of claim
and failure to commence the action against ESD within the one-year-and-ninety-day period
prescribed by Public Authorities Law § 3567(1), and, in the alternative, seeks leave to amend its
answer to assert a specific statute of limitations defense. Plaintiff opposes, principally arguing that
Public Authorities Law § 3567(1) does not apply to ESD, that ESD has invoked a statute applicable
only to the Roswell Park Cancer Institute Corporation, and that any late effort to add a limitations
defense is both legally baseless and prejudicial after approximately a year of litigation.
ARGUMENTS
ESD argues that plaintiff’s claims against it are barred both by failure to serve a notice of
claim and by untimeliness.
Relying on Public Authorities Law § 3567(1), ESD contends that plaintiff was required, as
a condition precedent to suit, to serve a notice of claim on ESD within the time prescribed by GML
§ 50–e(1), i.e., within 90 days of the accrual of the claim. ESD further contends that § 3567(1)
imposes a substantive limitations period requiring that any action for personal injury against ESD
be commenced within one year and ninety days of the event upon which the claim is based.
Because plaintiff admittedly never served a notice of claim on ESD and did not commence the
action against ESD until October 14, 2024—well beyond the one-year-and-ninety-day period,
which expired on August 15, 2024—ESD argues that the claims are barred as a matter of law.
ESD relies on Smarsch v New York State Urban Dev. Corp., 2009 NY Slip Op 31081(U)
(Sup Ct, NY County), where the court applied Public Authorities Law § 3567(1) to ESD and
dismissed a personal injury claim against ESD for failure to serve a timely notice of claim and
failure to commence suit within one year and ninety days.
In the alternative, ESD seeks leave to amend its answer under CPLR § 3025(b) to add an
explicit affirmative defense that plaintiff’s claims are barred by the applicable statute of
limitations. Citing New York Cent. Ins. Co. v Berdar Equities Co., 33 Misc 3d 1214(A), as well as
Fahey v County of Ontario, 44 NY2d 934 (1978), Thomas Crimmins Contr. Co. v City of New
York, 74 NY2d 166 (1989), Herrick v Second Cuthouse, 64 NY2d 692 (1984), Seda v New York
City Hous. Auth., 181 AD2d 469 (1st Dept 1992), and Solomon Holding Corp. v Golia, 55 AD3d
507 (1st Dept 2008), ESD argues that leave to amend to assert a statute of limitations defense
should be “freely given,” absent prejudice or surprise, especially where the defense is meritorious
on its face. ESD contends there is no prejudice because, even had the defense been pled at the
outset, plaintiff’s claim was already time-barred and incapable of being cured once the one-year-
and-ninety-day period expired.
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ESD therefore asks the court to (1) dismiss the amended complaint as against ESD for
failure to serve a notice of claim and for untimeliness, and (2) if necessary, grant leave to amend
ESD’s answer to expressly assert the statute of limitations defense and then dismiss on that ground
as well.
Plaintiff opposes the motion on several grounds.
First, plaintiff argues that Public Authorities Law § 3567(1) does not apply to ESD at all.
Plaintiff contends that § 3567(1) is part of the Roswell Park Cancer Institute Corporation Act, a
statute that pertains to a health-care corporation rather than to ESD. Plaintiff characterizes ESD’s
reliance on § 3567(1) as “mystifying” and asserts that ESD has simply invoked a statute governing
a different public authority. Because the statute is allegedly inapplicable, plaintiff argues that ESD
has failed to demonstrate any notice of claim requirement or one-year-and-ninety-day limitations
period that could bar her claim.
Second, plaintiff argues that ESD waived any statute of limitations defense by failing to
assert it specifically in its original answer. Plaintiff maintains that ESD could have, but did not,
plead the one-year-and-ninety-day limitation period as an affirmative defense, and that an
amendment now—after roughly a year of litigation and the completion of significant discovery—
is both “surprising and prejudicial.” According to plaintiff, ESD “has not even demonstrated what
the applicable statute of limitations would be,” and its proposed amendment rests entirely on a
statute that does not govern ESD. Plaintiff characterizes the proposed amendment as “palpably
insufficient” and “patently devoid of merit” under Bolanowski v Trustees of Columbia Univ. in
City of N.Y., 21 AD3d 340 (2d Dept 2005), and related authority, and urges the court to deny leave.
Third, plaintiff asserts prejudice and surprise, emphasizing that ESD seeks to inject a
dispositive timeliness defense after the parties have been litigating the merits and conducting
substantial discovery. Plaintiff argues that this late shift in litigation posture, especially when
predicated on an allegedly inapplicable statute, is precisely the kind of prejudice that warrants
denial of leave to amend under CPLR § 3025(b).
Plaintiff therefore requests that the court deny ESD’s motion in its entirety.
In reply, ESD reiterates that Public Authorities Law § 3567(1) applies to ESD and is not
limited to the Roswell Park Cancer Institute Corporation. ESD notes that the identical statutory
language was applied in Smarsch to claims brought against ESD itself, and that the statute
expressly conditions the maintenance of personal injury actions against “the corporation” upon the
timely service of a notice of claim and commencement of the action within one year and ninety
days.
ESD emphasizes that it is undisputed that plaintiff never served a notice of claim on ESD
and that the amended complaint naming ESD was not filed until October 14, 2024—two months
after the one-year-and-ninety-day period expired on August 15, 2024. ESD contends that, under
Public Authorities Law § 3567(1), GML §§ 50–e and 50–i, and controlling Court of Appeals
precedent, the court lacks discretion to permit a late notice of claim or to overlook the failure to
comply with the statutory condition precedent once that outer limitation period has expired.
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With respect to amendment, ESD argues that its proposed statute of limitations defense is
facially meritorious, that plaintiff cannot demonstrate any prejudice where the claim was time-
barred from the outset, and that the amendment merely clarifies and amplifies timing and notice
issues already flagged by the pre-suit-notice affirmative defense in its original answer.
DISCUSSION
A. Legal Framework: Notice of Claim and Limitations Period
Public Authorities Law § 3567(1) governs actions for personal injury and property damage
against the New York State Urban Development Corporation. The statute provides, in relevant
part, that no action “shall be prosecuted or maintained” against the corporation, its members,
officers, or employees for personal injury or property damage allegedly sustained by reason of the
negligence or tort of the corporation unless:
• a notice of claim has been made and served upon the corporation within the time limit set
by and in compliance with GML § 50–e; and
• “the action or special proceeding shall be commenced within one year and ninety days after
the happening of the event upon which the claim is based.”
Public Authorities Law § 3567(1) thus incorporates the notice-of-claim requirements of
GML § 50–e and imposes a one-year-and-ninety-day limitations period analogous to that
contained in GML § 50–i for tort claims against municipalities.
GML § 50–e(1)(a) in turn provides that, in any tort case where a notice of claim is required
as a condition precedent to suit against a public corporation, the notice must be served within 90
days after the claim arises. The service of a timely notice of claim is a statutory condition precedent
to suit, not a mere procedural formality. Failure to comply with this condition precedent ordinarily
warrants dismissal of the action (see Parochial Bus Sys., Inc. v Board of Educ. of City of N.Y., 60
NY2d 539, 548 [1983]; Brown v City of New York, 95 NY2d 389, 392–393 [2000]).
Although GML § 50–e(5) permits a court, in its discretion, to grant leave to serve a late
notice of claim, the statute expressly provides that “[t]he extension shall not exceed the time
limited for the commencement of an action by the claimant against the public corporation.” The
Court of Appeals has repeatedly held that once the outer limitations period has expired, a court is
without authority to permit the late service of a notice of claim (see Pierson v City of New York,
56 NY2d 950, 954 [1982][A court is without power to authorize the late filing of a notice of claim
after the statute of limitations has run]; Hall v City of New York, 1 AD3d 254 [1st Dept 2003][same
principle applied under GML § 50–e[5]]).
The combined effect of Public Authorities Law § 3567(1) and GML §§ 50–e and 50–i,
therefore, is twofold: (1) a timely notice of claim is a condition precedent to suit against ESD, and
(2) any action against ESD for personal injuries must be commenced within one year and ninety
days of the event, after which both the cause of action and the court’s power to grant late notice
relief are extinguished.
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B. Applicability of Public Authorities Law § 3567(1) to ESD
Plaintiff’s principal argument is that Public Authorities Law § 3567(1) is part of the
Roswell Park Cancer Institute Corporation Act and is therefore inapplicable to ESD. That
contention is not supported by the statute’s text or by the case law cited to the Court.
ESD’s submissions demonstrate that Public Authorities Law § 3567(1) has been expressly
applied to actions against ESD. In Smarsch v New York State Urban Dev. Corp., 2009 NY Slip Op
31081(U) (Sup Ct, NY County), the plaintiff, like plaintiff here, sought to recover personal injury
damages from ESD for an accident occurring on premises owned by ESD. The court held that,
“[i]n order for [plaintiff] to recover damages from Empire State, he is required, under section
3567(1) of New York’s Public Authorities Law, to file a notice of claim,” and then quoted the
same statutory language invoked by ESD here, including the one-year-and-ninety-day
commencement requirement. The court denied leave to file a late notice of claim and dismissed
the action against ESD for failure to comply with those statutory preconditions.
Although Smarsch is a trial-level decision, it is directly on point and applies the very
provision plaintiff insists is misdirected. More importantly, the text of § 3567(1) itself, as quoted
in the submissions, is framed in general terms applicable to “the corporation” and cross-references
GML § 50–e in the same manner as other provisions governing claims against public authorities.
On this record, and in light of Smarsch, the Court concludes that Public Authorities Law § 3567(1)
governs personal injury claims against ESD. Plaintiff’s assertion that the statute applies
exclusively to a different health-care-related authority is unpersuasive.
Accordingly, plaintiff’s claims against ESD are subject to:
1. a notice of claim requirement, with notice to be served within 90 days of accrual, and
2. a one-year-and-ninety-day limitations period measured from the date of the event.
C. Application to the Facts: Failure to Serve a Notice of Claim and Untimely
Commencement
The relevant dates are undisputed. Plaintiff alleges that the accident occurred on May 17,
2023. Under GML § 50–e(1)(a), the 90-day period within which plaintiff had to serve a notice of
claim on ESD expired on or about August 15, 2023. Under Public Authorities Law § 3567(1), the
one-year-and-ninety-day period within which plaintiff was required to commence an action against
ESD expired on or about August 15, 2024.
Plaintiff concedes—and the record confirms—that no notice of claim was ever served on
ESD. Plaintiff further concedes that the action against ESD was not commenced until October 14,
2024, when the supplemental summons and amended complaint first named ESD as a defendant.
Thus, by the time plaintiff attempted to sue ESD, both the 90-day notice period and the one-year-
and-ninety-day limitations period had already expired.
In these circumstances, the court’s analysis is straightforward. Because a timely notice of
claim is a condition precedent to suit under Public Authorities Law § 3567(1) and GML § 50–e,
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plaintiff’s undisputed failure to serve such notice is fatal to her claims absent leave to serve a late
notice (see Parochial Bus Sys., 60 NY2d at 548; Brown, 95 NY2d at 392–393). Yet GML § 50–
e(5) expressly forecloses any extension of the notice-of-claim deadline beyond “the time limited
for the commencement of an action by the claimant against the public corporation,” and the Court
of Appeals has made clear that courts lack authority to grant late notice relief once that outer
limitation has passed (Pierson, 56 NY2d at 954; Hall, 1 AD3d at 254).
Here, the one-year-and-ninety-day period expired on or about August 15, 2024. Plaintiff
did not name ESD until October 14, 2024. No application for leave to serve a late notice of claim
has been made, and even if it had been, it would necessarily be time-barred, as the statute and the
Court of Appeals decisions prohibit extending the notice period beyond the limitations period.
Thus, there is no procedural mechanism by which plaintiff can cure the failure to serve a notice of
claim or revive an otherwise time-barred claim.
Nor does the relation-back doctrine assist plaintiff. Relation back cannot be used to
circumvent statutory notice-of-claim requirements or the outer limitation imposed by statutes such
as Public Authorities Law § 3567(1) and GML § 50–i. A plaintiff cannot accomplish indirectly—
by later naming a new municipal or public-authority defendant—what the Legislature has
prohibited once the time to sue that defendant, and to serve the requisite notice, has expired (see
Pierson, 56 NY2d at 954; cf. Brown, 95 NY2d at 393–394 [strict enforcement of statute of
limitations and notice-of-claim provisions against municipal defendants]).
Accordingly, as a matter of law, plaintiff’s claims against ESD are barred both by failure
to serve a notice of claim and by failure to commence the action against ESD within one year and
ninety days of the accident. Those defects are fatal and incurable on this record. Dismissal is
therefore required.
D. ESD’s Motion to Amend Its Answer
Although the court concludes that dismissal is independently warranted based on the
notice-of-claim and limitations defects, it is appropriate to address ESD’s alternative request to
amend its answer to assert an explicit statute of limitations defense.
CPLR § 3025(b) provides that leave to amend “shall be freely given upon such terms as
may be just,” absent prejudice or surprise resulting directly from the delay. The Court of Appeals
and the Appellate Division have consistently held that leave to amend to add a statute of limitations
defense should ordinarily be granted where the amendment is not palpably insufficient or patently
devoid of merit and where the opposing party cannot show prejudice. As summarized in New York
Cent. Ins. Co. v Berdar Equities Co., 33 Misc 3d 1214(A), leave to amend to add a statute of
limitations defense is generally appropriate absent demonstrable prejudice or surprise and where
the proposed defense is not plainly without merit.
Here, ESD’s proposed statute of limitations defense is not only colorable; it is clearly
meritorious. The undisputed chronology establishes that the accident occurred on May 17, 2023;
the outer limitation period under Public Authorities Law § 3567(1) expired on August 15, 2024;
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and the action against ESD was not commenced until October 14, 2024. The defense therefore
rests on the face of the pleadings and the procedural record and, as discussed above, is dispositive.
Nor has plaintiff demonstrated prejudice or surprise of the sort that would warrant denial
of leave. Mere lateness in moving to amend, without a showing that the opponent was hindered in
preparing or presenting its case, does not constitute prejudice (see Fahey, 44 NY2d at 934). Here,
ESD’s original answer already contained an affirmative defense alleging plaintiff’s failure to
comply with “relevant laws…concerning pre-suit notice (e.g., notice of claim),” thereby signaling
that timing and notice issues were in dispute from the outset. The proposed amendment simply
clarifies and specifies the applicable limitations bar. Plaintiff does not identify any lost evidence,
foreclosed strategic options, or other concrete prejudice attributable to the timing of the motion, as
opposed to the substantive effect of the statute itself.
Moreover, plaintiff cannot credibly claim prejudice from the assertion of a statute of
limitations defense where, even if the defense had been pled on the first day, the claim against
ESD would still have been time-barred and incapable of cure, given the expired one-year-and-
ninety-day period. In these circumstances, any “prejudice” plaintiff experiences flows from the
Legislature’s policy choices embodied in Public Authorities Law § 3567(1) and GML §§ 50–e and
50–i, not from the timing of ESD’s application.
Because the proposed statute of limitations defense is meritorious and plaintiff has not
shown prejudice or surprise within the meaning of CPLR § 3025(b), leave to amend would be
warranted. However, in light of the court’s conclusion that plaintiff’s claims against ESD must be
dismissed as a matter of law for failure to serve a notice of claim and failure to commence within
one year and ninety days, the amendment is largely academic. In the exercise of its discretion, the
court grants leave to amend solely to the extent of deeming ESD’s proposed amended answer (with
the statute of limitations defense) served and filed nunc pro tunc, and then dismisses the amended
complaint as against ESD based on the notice-of-claim and limitations bars discussed above.
E. Prejudice, Waiver, and Equity
Finally, the court has considered plaintiff’s equitable arguments regarding surprise and the
progression of discovery. The Court does not minimize the practical impact that dismissal under
these statutes can have on an injured litigant. But the notice-of-claim and limitations provisions
governing suits against public entities and authorities reflect legislative judgments about the need
for prompt notice, timely investigation, and predictability in public finances. As the Court of
Appeals has emphasized, courts are not at liberty to disregard or extend these statutory
preconditions once the time periods they establish have run (Pierson, 56 NY2d at 954; Parochial
Bus Sys., 60 NY2d at 548).
Nor does the limited discovery that has occurred alter the analysis. The critical facts—date
of accident, absence of a notice of claim to ESD, and date ESD was first named as a defendant—
were known to plaintiff from the outset and appear on the face of the record. No further factual
development could cure the failure to comply with statutory conditions precedent that are, by their
nature, time-sensitive and jurisdictional in effect.
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Accordingly, plaintiff’s equitable objections do not provide a basis to deny ESD’s motion
in the face of clear statutory bars.
For the foregoing reasons, it is
ORDERED that the branch of defendant New York State Urban Development Corporation
d/b/a Empire State Development Corporation’s motion seeking dismissal of the amended
complaint as against it for failure to serve a notice of claim and for failure to timely commence the
action pursuant to Public Authorities Law § 3567(1), GML § 50–e, and CPLR § 3211(a)(5) is
granted; and it is further
ORDERED that the amended complaint is dismissed in its entirety as against defendant
New York State Urban Development Corporation d/b/a Empire State Development Corporation;
and it is further
ORDERED that the branch of defendant New York State Urban Development Corporation
d/b/a Empire State Development Corporation’s motion seeking leave to amend its answer pursuant
to CPLR § 3025(b) to assert a statute of limitations defense is granted to the limited extent that
defendant New York State Urban Development Corporation d/b/a Empire State Development
Corporation’s proposed amended answer annexed to the motion papers shall be deemed served
and filed nunc pro tunc, but such amendment does not alter the foregoing dismissal; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of defendant New York
State Urban Development Corporation d/b/a Empire State Development Corporation, with costs
and disbursements as taxed by the Clerk; and it is further
ORDERED that the action shall continue as against the remaining defendants, City of New
York and New York City Department of Transportation.
This constitutes the decision and order of the court.
11/18/2025
DATE HASA A. KINGO, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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