Ortiz
v.
City of New York

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentNov 2, 1967
28 A.D.2d 1098 (N.Y. App. Div. 1967)

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November 2, 1967


Order, entered September 28, 1966, dismissing defendant's affirmative defense of the Statute of Limitations, unanimously reversed, on the law, and the motion to dismiss the affirmative defense is denied, with $50 costs and disbursements to appellant. The action herein was not commenced until October 15, 1965, or one year and 260 days after the accident. As such it was then time-barred by operation of section 50-i Gen. Mun. of the General Municipal Law which specifically prescribes that an action of this character "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." This court has already indicated that arrangments between counsel resulting in adjournments of Comptroller's hearings will not extend the statutory period of limitations nor form the basis of estoppel where there remains a reasonble period of time within which to commence action. ( Robinson v. City of New York, 24 A.D.2d 260; 509 Sixth Ave. Corp. v. New York City Tr. Auth., 24 A.D.2d 975.) Particularly is this so, when as here, the plaintiff had a period of six months and nine days, a total of 190 days, after the conclusion of the Comptroller's examination, to bring an action and failed to do so. The suggested delinquency of plaintiff's counsel is not an acceptable excuse. ( Joiner v. City of New York, 26 A.D.2d 840; Sortino v. Fisher, 20 A.D.2d 25, 29.) The appeal from the order entered September 26, 1966 denying reargument is dismissed as not appealable, without costs and without disbursements.

Concur — Eager, J.P., Steuer, Tilzer, McNally and McGivern, JJ.