Opinion
364 23599/13.
03-01-2016
Anthony BAYNE, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
Tracie A. Sundeck & Associates, LLC, White Plains (Tracie A. Sundack of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Tracie A. Sundeck & Associates, LLC, White Plains (Tracie A. Sundack of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 4, 2014, which granted defendant City's motion to dismiss the complaint for plaintiff's failure to comply with General Municipal Law § 50–i(1), and denied plaintiff's cross motion for leave to amend the complaint, unanimously affirmed, without costs.
Thirteen days before the expiration of the one-year-and-ninety-day statute of limitations for commencing a personal injury action against the City (General Municipal Law § 50–i1 ), plaintiff sought leave to file a late notice of claim. The City did not oppose the petition, which was initially denied on procedural grounds. In an order entered September 13, 2013, Supreme Court (Schachner, J.) granted plaintiff leave to serve a late notice of claim within 30 days of the date of the order. Plaintiff served a notice of claim within that time period, and commenced this action on September 30, 2013.
Assuming, without deciding, that the statute of limitations was tolled during the pendency of plaintiff's petition (see Giblin v. Nassau County Med. Ctr., 61 N.Y.2d 67, 72–74, 471 N.Y.S.2d 563, 459 N.E.2d 856 1984; CPLR 204[a] ), it began running anew on September 13, 2013, when Supreme Court granted plaintiff leave to serve a late notice of claim (Doddy v. City of New York, 45 A.D.3d 431, 432, 844 N.Y.S.2d 869 1st Dept.2007 ). Accordingly, plaintiff was required to commence an action against the City within 13 days, on or before September 26, 2013, which he failed to do (id.). The order granting plaintiff leave to serve a late notice of claim within 30 days of the order could not extend the statute of limitations (see Baez v. New York City Health & Hosps. Corp., 80 N.Y.2d 571, 577, 592 N.Y.S.2d 640, 607 N.E.2d 787 1992; Ahnor v. City of New York, 101 A.D.3d 581, 582, 956 N.Y.S.2d 53 1st Dept. 2012 ). Plaintiff could have filed a complaint within the limitations period, or even before receiving leave to serve a late notice of claim (see Ahnor, 101 A.D.3d at 582, 956 N.Y.S.2d 53; see also Matter of Shannon v. Westchester County Health Care Corp., 76 A.D.3d 680, 682, 907 N.Y.S.2d 277 2d Dept.2010; General Municipal Law § 50–e5 ).
We have considered plaintiff's remaining contentions and find them unavailing.