From Casetext: Smarter Legal Research

Burcroff v. County of Orleans

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 9, 1981
83 A.D.2d 779 (N.Y. App. Div. 1981)

Opinion

July 9, 1981

Appeal from the Orleans Supreme Court, Boehm, J.

Present — Dillon, P.J., Simons, Hancock, Jr., Doerr and Moule, JJ.


Order unanimously affirmed, with costs. Memorandum: Defendant county appeals from an order denying its motion to dismiss as time barred a personal injury action brought against it arising out of an alleged highway defect and also denying its application to serve an amended answer alleging that the action was not commenced within one year of the date of service of the notice of claim as provided by section 139 High. of the Highway Law. We affirm. The accident occurred on September 1, 1978. Plaintiff filed her notice of claim on October 25, 1978 and commenced the action more than one year thereafter — on November 21, 1979. Section 139 High. of the Highway Law prohibits commencement of an action upon the claim "until the expiration of three months after the service of [the] notice." This provision of section 139 High. of the Highway Law is a "statutory prohibition" staying commencement of the action under CPLR 204 (subd [a]) which operates to toll the Statute of Limitations for the three-month period (see Pepitone v. Smith, 54 A.D.2d 754; Serravillo v. New York City Tr. Auth., 51 A.D.2d 1027, affd 42 N.Y.2d 918; Forero v Town of Tuxedo, 51 A.D.2d 443; see, also, 1 Weinstein-Korn-Miller, N Y Civ Prac, par 204.03a). The commencement of plaintiff's action was therefore timely.


Summaries of

Burcroff v. County of Orleans

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 9, 1981
83 A.D.2d 779 (N.Y. App. Div. 1981)
Case details for

Burcroff v. County of Orleans

Case Details

Full title:KATHLEEN BURCROFF, Respondent, v. COUNTY OF ORLEANS, Appellant, and TOWN…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 9, 1981

Citations

83 A.D.2d 779 (N.Y. App. Div. 1981)

Citing Cases

Culver v. County of Rensselaer

The numerous cases relied upon by plaintiff in support of her contention that CPLR 204 (a) tolls the 2-year…