Barchet v. New York City Transit Authority , 265 N.Y.S.2d 494 ( 1965 )

Appeal from an order of the Supreme Court at Special Term, entered May 19, 1965 in New York County, which granted a motion by plaintiff for an order to dismiss the affirmative defense and denied a cross motion by defendant to dismiss the complaint.

Memorandum by the Court.

Order entered May 19, 1965, granting plaintiff’s motion to dismiss the affirmative defense and denying the cross motion to dismiss the complaint, reversed, on the law, without costs and without disbursements, the motion denied and the cross motion granted. The defense is that plaintiff failed timely to commence this action. Subdivision 2 of section 1212 of the Public Authorities Law requires a tort action against the defendant to be commenced not more than one year after the cause has accrued. The accident is alleged to have occurred December 23, 1963. The action was commenced March 22, 1965. Subdivision 4 of section 1212 requires the complaint to allege that at least 30 days have elapsed since the service of the notice of claim required by section 50-e of the General Municipal Law. CPLR 204 (subd. [a]) extends the time for the commencement of an action stayed by the court or prohibited by statute to the extent the action is so stayed or prohibited. The cumulative effect of section 1212 and CPLR 204 is to enable a tort action against the defendant if commenced within not more than one year and 30 days after its accrual. (Amex Asphalt Corp. v. City of New York, 263 App. Div. 968, affd. 288 N. Y. 721.) The order made February 15, 1965 granting plaintiff leave to serve the late notice of claim and the proceedings incident to the motion therefor do not serve to enlarge plaintiff’s time to commence this action. CPLR 204 enlarges the time to commence an action “ Where the commencement of the action has been stayed by a court or by statutory prohibition ”. The commencement of this action was not stayed and there is no statutory prohibition. Subdivision 4 of section 1212 of the Public Authorities Law simply requires the complaint to allege the lapse of 30 days since the service of the notice of claim; it does not prohibit the commencement of the action. In any event, the extension of time to file the claim does not operate to suspend or affect the time limitation of section 1212 of the Public Authorities Law. (See Christian v. Village of Herkimer, 5 A D 2d 62, affd. 5 N Y 2d 818; Hernandez v. New York City Tr. Auth., 41 Misc 2d 123, affd. 20 A D 2d 968.) The Christian case is express authority for the proposition that the provisions for serving a late notice of claim do not have the effect of extending the time during which the action may be commenced. The provision of subdivision 4 of section 1212 of the Public Authorities Law requires the allegation that at least 30 days have elapsed since service of the notice of claim enables a timely action within 1 year and 30 days after the cause of action has accrued (Amex Asphalt Corp. v. City of New York, supra); it does not serve to toll the Statute of Limitations pending an application for the extension of time to serve a notice of claim nor does it prohibit the commencement of an action.