Derico v. City of New York , 411 N.Y.S.2d 540 ( 1978 )

Appeal from order, Supreme Court, New York County, entered January 16, 1978, dismissed, as abandoned, without costs and without disbursements. Order, of the same court and Justice, entered November 2, 1977, unanimously modified, on the law and the facts, to deny plaintiffs-respondents’ motion to dismiss the second and third affirmative defenses, and to strike that provision granting plaintiffs-respondents’ application to file a notice of claim belatedly, and otherwise affirmed, without costs and without disbursements. Permission to file belatedly a notice of claim was improperly granted. (Matter of Beary v City of Rye, 44 NY2d 398, 413.) The two reinstated defenses are based on section 50-e of the General Municipal Law, compliance with which is predicate to action against the city. For whatever reason, defendant-appellant city has elected not to brief its appeal in respect of the first affirmative defense of Statute of Limitations and it is deemed abandoned. Concur-Lupiano, J. P., Evans, Markewich and Sullivan, JJ.