
    In the Matter of Alfio Ferro, Appellant, v City of New York, Department of Correction, Respondent.
   — In a proceeding for leave to serve a late notice of claim against the City of New York, the appeal is from an order of the Supreme Court, Queens County (Dufficy, J.), dated May 31, 1979, which denied the application. The city has moved to dismiss the appeal as untimely. Appeal dismissed, without costs or disbursements, on the ground that the appeal was not timely taken. Were we not dismissing the appeal, we would affirm the order. The motion for leave to serve a late notice of claim was made more than one year and 90 days after the incident in question. Thus, the court lacked power to grant the application. In any event, the action would be barred because of the failure to commence it within one year and 90 days after the occurrence of the incident (see General Municipal Law, § 50-i). The fact that petitioner’s attorney may have been delinquent in failing to timely commence the action is not an acceptable excuse (see Ortiz v City of New York, 28 AD2d 1098). Damiani, J. P., O’Connor, Thompson and Niehoff, JJ., concur.  