Opinion
March 30, 1987
Appeal from the Supreme Court, Queens County (Goldstein, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the action against the remaining defendants is severed.
The Port Authority has waived immunity and consented to be sued only in the event that certain jurisdictional conditions precedent are performed (see, L 1950, ch 301, §§ 1, 7; Trippe v. Port of N.Y. Auth., 14 N.Y.2d 119, 123-124; Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 95-96). In the event that these statutory conditions are not met, the Port Authority's consent to be sued is withheld (Luciano v. Fanberg Realty Co., supra, at 96). Among these conditions precedent is that the action be commenced within one year after the cause of action has accrued (L 1950, ch 301, § 7). Because this one-year period in which to commence an action against the Port Authority constitutes a condition precedent rather than a mere Statute of Limitations (see, Kahn v. Trans World Airlines, 82 A.D.2d 696, 699; De Luca v New York City Tr. Auth., 119 Misc.2d 523; see also, Giannone v Port Auth., 127 A.D.2d 818; cf., S J Deli v. New York Prop. Ins. Underwriting Assn., 119 A.D.2d 652), that period cannot be extended by the toll contained in CPLR 203 (b) (5) (see, De Luca v. New York City Tr. Auth., supra; see also, Seguritan v. Northwest Airlines, 86 A.D.2d 658, 659; affd 57 N.Y.2d 767).
In this case, it is undisputed that the cause of action accrued on November 29, 1983. On November 28, 1984, the plaintiffs served a copy of their summons on the County Clerk of Queens County, and the defendant Port Authority was served on January 24, 1985, almost 14 months after the cause of action had accrued. Thus, although the Port Authority was served within 60 days after service upon the County Clerk, the provisions of CPLR 203 (b) (5) had no effect upon the plaintiffs' failure to comply with the condition precedent (see, Seguritan v. Northwest Airlines, supra, at 659) and did not serve to extend the time within which the plaintiffs were required to commence their action beyond one year (L 1950, ch 301, § 7; De Luca v. New York City Tr. Auth., supra).
Accordingly, the Port Authority's motion to dismiss the complaint insofar as it is asserted against it must be granted. Bracken, J.P., Weinstein, Rubin and Harwood, JJ., concur.