Vargas v. City of New York 217 A.D.2d 409, 628 N.Y.S.2d 1016

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about February 3, 1994, affirmed, without costs or disbursements. Concur—Ellerin, J. P., Ross, Nardelli and Mazzarelli, JJ.

Tom, J., dissents in a memorandum as follows:

I respectfully dissent and would modify the judgment of the IAS Court to the extent of vacating that portion of the judgment awarding plaintiff damages for conscious pain and suffering and dismissing that cause of action. I find that the IAS Court erred in concluding that the 90-day period for filing the Notice of Claim had been tolled "at least until the time within which such a Notice was actually served”; and that plaintiff’s failure to move to file a late Notice of Claim until approximately 8 years later, despite being put on notice by defendant’s answer within 1 year and 90 days that a Notice of Claim had not been filed, is fatal to her claim (see, Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Shoy v St. Lukes Roosevelt Hosp. Ctr., 200 AD2d 366, lv dismissed 84 NY2d 847).