Plaintiff moves to amend his bill of particulars pursuant to CPLR 3043( c). Defendant cross-moves to dismiss the complaint for failure to comply with General Municipal Law §§ 50-e and 50-i, and for costs and disbursements. For the reasons which follow, the motion is denied as academic and the cross-motion is granted.

Plaintiff was injured on July 5, 2001 when he tripped and fell on the sidewalk "on the Sixth Avenue/Avenue of the Americas side of premises known as and by 333 Sixth Avenue/Avenue of the Americas, New York, New York." (Not. of Mot. Ex. 1, Am. Ver. Compl. ¶ 77). He served a verified bill of particulars dated February 28, 2003, in which it is stated that he sustained certain injuries to his left shoulder and left arm and hand; injury to his left eye and left side of his face; "contusion of the right knee," and "severe tenderness to palpation of the [*2]right knee." (Not. of Mot. Ex. 3, Ver. Bill of Part. ¶ 5).

The Note of Issue was filed on February 14, 2005 (Not. of Mot. Ex. 4). New counsel for plaintiff was retained for the trial who learned, sometime before March 2006, that plaintiff had suffered an injury to his right achilles tendon in January 2005 and had undergone a tendon reconstruction in April 2005 (Not. of Mot. Fontanelli Aff. ¶¶ 6-9). On March 30, 2006, plaintiff's counsel served an amended bill of particulars on defendant (Not. of Mot. Fontanelli Aff. ¶ 9). The amended bill of particulars sets forth a description of these additional personal injuries (Not. of Mot. Ex. 8). This amended version is based on treatment from plaintiff's treating physician and surgeon (Not. of Mot. Ex. 7, Sands Aff. ¶ 3). Defendant did not consent to the amendment and plaintiff accordingly brings the within motion.

The City cross-moves to dismiss the complaint because the date on which the notice of claim was filed, October 4, 2001, was 91 days after the injury, that is to say, one day beyond the 90-day filing period allotted by GML § 90-e(1)(a).Neither plaintiff, who retained an attorney only after he filed the notice of claim, nor his counsel, sought court permission to file and serve a late notice of claim pursuant to GML §§ 50-e(5). Rather, plaintiff's counsel filed a summons and verified complaint on September 17, 2002, within the one-year-and-90-day time-frame allotted by GML § 50-i. Defendant argues that because the filing of a timely notice of claim is a condition precedent to the commencement of litigation against the City, plaintiff's failure to seek permission to serve a late notice of claim makes his notice a nullity and the complaint must be dismissed.

Plaintiff points out that in between his injury on July 5, 2001 and the date he served his notice of claim on October 4, 2001, the events known colloquially as "9 - 11" occurred. In response to these events, then-Governor George Pataki issued a series of Executive Orders concerning the state of emergency existing in New York, commencing with Executive Order No. 113 (9 NYCRR § 5.113). In particular, Executive Order No. 113.7 suspended CPLR 201 "until further notice, and so far as it limits a court's authority to extend such time, whether or not the time to commence such an action is specified in Article 2 of the Civil Practice Law and Rules."^[FN1] It also temporarily suspended "any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing of service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commencing from the date that the disaster emergency was declared...." (9 NYCRR § 5.113.7). Executive Order No. 113.28 extended the provisions until October 12, 2001, and for those persons or attorneys "directly affected" by the events, the time was extended until November 8, 2001 (9 NYCRR § 5.113.28). Plaintiff argues that the tolling provisions should apply to his serving of the notice of claim, in particular as he was only one day late, he was without an attorney at the time, and the City's law [*3]department was itself directly affected by the attack on the World Trade Center.

General Municipal Law § 50-e, which applies to tort claims against a public corporation, requires that a notice of claim must be served on the entity within 90 days after the claim arises (Gen. Mun. L. §50-e[1][a]). The purpose of the notice of claim is to enable the public corporation to investigate claims and obtain evidence promptly. The notice of claim has been termed a condition precedent to commencing a suit against a public corporation (see, e.g., Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]). For this reason, the cross-motion must be addressed first.

The court may, in its discretion and upon application by the plaintiff, extend the time to serve a notice of claim (Gen. Mun. L. §§ 50-e[5]). This exercise of discretion is circumscribed by the clear legal mandate that the filing of the notice of claim must be accomplished within the statute of limitations period, that is, not more than one year and 90 days after the cause of action accrued, unless the statute of limitations was tolled (Gen. Mun. L. §§ 50-e[5]; 50-i; Pierson v City of New York, 56 NY2d 950, 954 [1982]). The courts have "consistently treated the year-and-90-day provision contained in section 50-i as a statute of limitations" (Campbell v City of New York, 4 NY3d 200, 203 [2005]).

The issue before the court, is whether Executive Order Nos. 133, 133.7, and 133.28, pertain to notices of claim as set forth in GML § 50-e. As concerns the scope of the Executive Orders, it has previously been held that where a litigant commenced a claim of medical malpractice on October 12, 2001, although the statute of limitations had expired on October 6, 2001, it was nonetheless deemed timely commenced pursuant to Executive Order No. 133.28 (Deltoro v Arya, 305 AD2d 628 [2d Dept. 2003]). In contrast, where a litigant had timely filed his notice of claim concerning an accident involving the New York City Transit Authority on October 26, 2000, but did not timely commence his action within one year and 90 days or by February 23, 2002, he could not claim an extension of the time to commence based on the temporary suspension of the statutes of limitations from September 11 to November 8, 2001, as the state of emergency no longer existed by February 2002 (Scheja v Sosa, 4 AD3d 410, 412 [2d Dept. 2004]). In addition, that a defendant's answer was apparently "due" during the days following September 11, 2001 did not absolve that defendant from expeditiously seeking to extend its time to answer, as the Executive Orders applied only to statutes that a court could not extend in the exercise of its discretion (CB Richard Ellis, Buffalo, NY, LLC v JLC Holdings, LLC, 306 AD2d 870 [4th Dept. 2003] [denying vacatur of default judgment]).

Since the World Trade Center attack, "hundreds" of rescue workers have sought leave to serve late notices of claim (Matter of Auditore v City of New York, 2006 NY Slip Op. 26405, * 5 [Sup. Ct., New York County 2006, Stallman, J.]). They have sought leave beyond the 90-day period but within the one-year-and-90-day statute of limitations because they did not initially recognize their symptoms as evidence of a serious medical condition (see, e.g., Stephenson v City of New York, 11 Misc 3d 492 [Sup. Ct., NY County 2005] [application brought on December 9, 2002 seeking to serve late notice of claim, timely under the statute and granted based on reasonable excuse for delay and lack of prejudice to City]). However, in Goffredo v City of New York, 33 AD3d 346 (1st Dept. 2006), a World Trade Center site worker who sought to serve a late notice of claim on December 23, 2003, although his chronic obstructive pulmonary disease, [*4]diagnosed on February 27, 2003, began to manifest itself in December 2001, was denied his application on the grounds that the statute of limitations for commencing an action against the City had run (see also, Matter of Auditore v City of New York).

Plaintiff argues that former-Governor Pataki's Executive Orders explicitly suspending the limitations of time for filing or service of any action, notice or process until at least October 12, 2001, include notices of claim. However, as clearly set forth in GML § 50-e(5), the court may, "in its discretion," extend the time to serve a notice of claim, although not longer than one year and 90 days after the accrual of the cause of action. When exercising its discretion to extend the time to serve a notice of claim, a court will analyze various factors including the reason for the delay, the prejudice to the municipal defendant, and whether the defendant had acquired actual knowledge of the essential facts constituting the claim within the 90-day period or in a reasonable time thereafter (Gen. Mun. L. §§ 50-e[5]; 50-i). In other words, the statutory framework has built into it a mechanism by which a court can exercise its discretion. Thus, Executive Order Nos. 133.7 and 133.28, which pertain explicitly to proceedings where the court lacks authority to extend the time for filing or service of pertinent documents, do not apply to notices of claim.

Plaintiff makes cogent arguments as to why the court should exercise its discretion to permit the late notice. However, unfortunately for plaintiff the court is simply not vested with any such discretion on this set of facts. While it is true plaintiff's notice of claim was only a day late, and it is true that he was not yet represented by counsel on October 4, 2001 and is also true that the City was still very much suffering from the recent attacks, this case cannot be distinguished from Hochberg v City of New York, 63 NY2d 665 (1984), aff'g 99 AD2d 1028, 1029 (1st Dept.). Hochberg and so many other cases have held that where a plaintiff serves a late notice of claim without leave of court, then files and serves a summons and complaint, and after the statute of limitations has expired belatedly seeks an order declaring the late notice of claim to be timely served nunc pro tunc or for leave to serve a late notice of claim, the court has no authority to permit the service of the late notice of claim. In short, it matters not whether the plaintiff can satisfy the multi-factor test set forth in the Municipal Law and the case law regarding late notices of claim because the application is being made after expiration of the statute of limitations.The issue here is that the notice of claim was not timely served and that this error could have been corrected by an application to the court made within the following year, but was not. Plaintiff's statute of limitation to commence his action did not expire until October 3, 2002, long after the Executive Orders expired. His right to commence an action did not expire on October 3, 2001, only his right to serve a notice of claim without leave of court.

The untimely notice of claim, served without leave of the court, is a nullity (see, Wollins v New York City Board of Educ., 8 AD3d 30, 30 [1st Dept. 2004]). Moreover, plaintiff's summons and verified complaint, served within one year and 90 days of his accident, cannot be deemed as a substitute for a timely notice of claim (Nu-Life Constr. Corp. v Board of Educ. of City of New York, 204 AD2d 106, 108 [1st Dept.], lv dismissed 84 NY2d 850 [1994])). Although it might be objected that more than four years of litigation have taken place prior to City's cross-motion to dismiss the complaint, the City "is under no obligation to notify a plaintiff that his notice of claim is not timely," and the fact that a municipality does not reject or object to untimely service of the notice of claim, or participates in discovery, will not serve to obviate the provisions of [*5]General Municipal Law § 50-e(5) (Wollins v New York City Board of Educ., 8 AD3d, at 31).

Accordingly, although the results are harsh, the law is clear that defendant's cross-motion to dismiss the complaint for failure to timely serve a notice of claim, must be granted. Inasmuch as the cross-motion is granted, the merits of the motion to amend the bill of particulars need not be addressed. It is

ORDERED that the motion to amend is denied as academic; and it is further

ORDERED that the cross-motion to dismiss the complaint is granted and the Clerk of the Court shall enter judgment dismissing the complaint in its entirety ^[FN2] together with costs and disbursements to defendant as taxed by the Clerk of the Court; and

it is further

ORDERED that the cross-movant shall serve a copy of this order on the Clerk of the Court (60 Centre St., Basement), the Clerk of Trial Support (60 Centre St., Rm. 158) and the DCM Clerk (80 Centre St., Rm. 102) together with proof of notice of entry.

This constitutes the decision and order of the court.

Dated: January 8, 2007__________________________________________

New York, New YorkJ.S.C.