Opinion
April 11, 1994
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the order is reversed on the law, with costs, the motion is granted, and the first cause of action is dismissed.
The Supreme Court found that the Statute of Limitations was tolled for 30 days pursuant to Education Law § 3813 (1) and for an additional 39 days while the plaintiff's motion for leave to serve a late notice of claim was pending. We disagree with the Supreme Court's finding that the Statute of Limitations was tolled pursuant to Education Law § 3813 (1). Thus, we reverse and grant the defendant's motion to dismiss the first cause of action.
The defendant correctly contends that the precedential value of Matter of Vail v Board of Coop. Educ. Servs. ( 115 A.D.2d 231) and Matter of Cordani v Board of Educ. ( 66 A.D.2d 780) has been eroded insofar as those cases hold that the one-year Statute of Limitations of Education Law § 3813 (2-b) is enlarged by the 30-day waiting period between the filing of a notice of claim and the commencement of an action found in Education Law § 3813 (1) (see, Rutigliano v Board of Educ., 176 A.D.2d 866). Therefore, the Statute of Limitations in this case was not tolled for 30 days pursuant to Education Law § 3813 (1).
Although the Supreme Court correctly found that the Statute of Limitations was tolled during the 39-day period when the plaintiff's motion for leave to serve a late notice of claim was pending (see, Giblin v Nassau County Med. Ctr., 61 N.Y.2d 67), the plaintiff commenced this action one year and 41 days after the cause of action had accrued. Therefore, the first cause of action is time-barred. Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.