Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 15, 2007. The order denied a motion by defendant The City of New York to dismiss the complaint insofar as asserted against it.

Order reversed without costs, and motion by defendant The City of New York to dismiss the complaint insofar as asserted against it granted.

The instant personal injury action arises out of an alleged trip and fall on a defective sidewalk on November 18, 2003. The action was commenced against defendant The City of New York (the City), and co-defendants Gustin Reichbach and Ellen Meyers (co-defendants), by the filing of a summons with endorsed complaint on November 20, 2006. After issue was joined, the City moved to dismiss the complaint as against it based upon plaintiff's failure to timely serve it with a notice of claim (see General Municipal Law § 50-e) and on the ground that the action was time-barred (see General Municipal Law § 50-i). The Civil Court denied the motion, finding that plaintiff had proffered sufficient documentation to demonstrate that she had served a timely notice of claim. The court, however, did not address the issue of whether plaintiff's action was barred by the statute of limitations. This appeal by the City ensued.

General Municipal Law § 50-i (1) provides, in pertinent part:
"No action . . . shall be prosecuted or maintained against a city . . . for personal injury . . . alleged to have been sustained by reason of the negligence or wrongful act of such city . . .unless, (a) a notice of claim shall have been made and served upon the city . . ., (b) it shall appear . . . that at least thirty days have elapsed since the service of such notice . . ., and (c) the action . . . shall be [*2]commenced within one year and ninety days after the happening of the event upon which the claim is based . . ."

Even assuming that a timely notice of claim was made and served upon the City, it is clear that "the happening of the event upon which the claim is based" was on November 18, 2003, the date of plaintiff's alleged trip and fall (see e.g. Kiernan v Thompson, 134 AD2d 27 [1987], affd 73 NY2d 840 [1988]). Consequently, plaintiff was required to commence the action against the City "within one year and ninety days" after that date, or by February 16, 2005. The summons with endorsed complaint was filed with the court on November 20, 2006. There is nothing in the record to indicate that the limitation period was tolled. Because plaintiff failed to commence the action against the City until after the expiration of the statute of limitations prescribed in General Municipal Law § 50-i, it was error for the Civil Court not to have granted the City's motion to dismiss the complaint insofar as asserted against it.
Accordingly, the order is reversed and the City's motion to dismiss the complaint insofar as asserted against it is granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009