Lindo v. City of New York

—Order, Supreme Court, New York County (Richard Braun, J.), entered March 18, 1999, which, insofar as appealed from, denied petitioner’s application to serve a late notice of claim for malicious prosecution, unanimously affirmed, without costs.

The proposed claim for malicious prosecution, which alleges *91that the underlying criminal prosecution against petitioner was dismissed pursuant to CPL 30.30, is patently without merit (see, Witcher v Children’s Tel. Workshop, 187 AD2d 292; cf., Hankins v Great Atl. & Pac. Tea Co., 208 AD2d 111, 115-116). Thus, permission to serve the claim late was properly refused (see, Weiss v City of New York, 237 AD2d 212, 213). Concur — Rubin, J. P., Andrias, Saxe, Buckley and Friedman, JJ. [Recalled and vacated, 277 AD2d-(1st Dept., Nov. 16, 2000).]