Bayne v City of New York, 137 AD3d 428 [1^st Dept., 2016]

If a would-be tort plaintiff against a municipality has failed to file a notice of claim, a proceeding for leave to file late notice may be necessary. This case points up a potential pitfall: If the would-be plaintiff waits until actually obtaining leave before filing the summons and complaint, he may have less time left than he thinks. However much time was left in the limitations period at the time the proceeding was commenced will be as much time as is left after it is granted. The pendency of the proceeding tolls the running of the limitations period, it does not extend it or start it anew.

“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 NY2d 67, 72-74 [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 AD3d 431, 432 [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 NY2d 571, 577 [1992]; Ahnor v City of New York, 101 AD3d 581, 582 [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 AD3d at 582; see also Matter of Shannon v Westchester County Health Care Corp., 76 AD3d 680, 682 [2d Dept 2010]; General Municipal Law § 50-e[5]).”

 

The language of the opinion “assuming, without deciding” may give the impression that whether there is a toll is an open question. It is not: there is a toll from the commencement of the proceeding until the order granting it “goes into effect.”^[1] The Second Department said, in Ambrus v City of New York,

“The Court of Appeals has long recognized that CPLR 204(a) tolls the one-year and 90–day statute of limitations governing tort claims against municipal defendants while a motion to serve a late notice of claim is pending. The toll has been held to run from the date an application for leave to serve a late notice of claim is made to the date upon which an order granting that relief goes into effect.”[2]

What does that last phrase mean? A prudent practitioner would not wait until the order is served on him or her with notice of entry. Rather, the period seems to resume when the order granting the petition is entered. Where the remaining time is only a matter of days, prudence dictates watching the court records like a hawk.^[3]

Is it permissible to commence the action without having first obtained leave to file the late notice of claim? It is mechanically possible to file a summons and complaint, but does it comply with proper procedure? After all, such a complaint could not legitimately allege that a notice of claim has been timely filed. Note that in Barchet v NYCTA the Court of Appeals noted that GML § 50-e requires that the application for leave be made before commencement of an action, and that the would-be plaintiff is prohibited from commencing the action until leave to file is obtained.^[4] On the other hand, the Second Department’s language quoted above gives explicit sanction to commencing the action before leave is obtained.^[5]

[1] Barchet v. New York City Tr. Auth., 20 N.Y.2d 1; Giblin v Nassau County Med. Ctr., 61 NY2d 67, 72 [1984]; Ambrus v City of New York, 87 AD3d 341[2d Dept 2011]

[2] Ambrus v City of New York, 87 AD3d 341, 342 [2d Dept 2011]

[3] See, Ahnor v City of New York, 101 AD3d 581 [1st Dept 2012], where the court explicitly states that the toll ends at the entry of the order.

[4] 20 N.Y.2d at p. 6

[5] Accord, Ahnor v City of New York, 101 AD3d 581 [1st Dept 2012]