Opinion
April 15, 1991
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's cross motion is denied, and that branch of the defendant's motion which was to dismiss the complaint insofar as asserted on behalf of Hyacinth Cespedes for failure to comply with General Municipal Law § 50-i, is granted.
The one-year-and-90-day Statute of Limitations of General Municipal Law § 50-i is tolled from the time a plaintiff commences a proceeding for leave to serve a late notice of claim until an order granting that relief goes into effect (see, Giblin v. Nassau County Med. Center, 61 N.Y.2d 67, 72; Barchet v New York City Tr. Auth., 20 N.Y.2d 1, 6). Here, the respondent commenced such a proceeding by order to show cause. "CPLR 2211 specifically provides that a motion brought on by [an] order to show cause is made when served and not when signed" (Mortgage Affiliates Corp. v. Jerder Realty Serv., 62 A.D.2d 591, 593, affd 47 N.Y.2d 796; see also, CPLR 2211; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2211:4). Therefore, the Statute of Limitations was tolled from August 18, 1987, until October 23, 1987, a total of 66 days. Adding the 66 days to the original deadline for service of the summons and complaint, December 1, 1987, we find that the last day on which the plaintiff Hyacinth Cespedes could have served her summons and complaint was February 5, 1988. Therefore, service on February 10, 1988, was untimely and failed to comply with General Municipal Law § 50-i.
We have examined the plaintiff Hyacinth Cespedes' remaining contention and find it to be without merit. Sullivan, J.P., Eiber, Rosenblatt and Ritter, JJ., concur.