80 A.D.2d 628 | N.Y. App. Div. | 1981
In a negligence action to recover damages for personal injuries, etc., the Town of Huntington appeals from an order of the Supreme Court, Suffolk County, dated January 15, 1980, which denied its motion for summary judgment dismissing the complaint as against it. Order reversed, on the law, with $50 costs and disbursements, motion granted, and complaint dismissed as against the Town of Huntington. Plaintiff Alexander Astromovich was allegedly injured on April 20, 1978, while he was employed as a steam fitter, during the renovation of a school building in the Town of Huntington. Plaintiffs timely served a notice of claim upon appellant on June 27, 1978. By notice dated August 10, 1978, appellant demanded an examination of plaintiffs, at a specified time, date and location, pursuant to section 50-h of the General Municipal Law. Plaintiffs did not appear pursuant to the notice. Thereafter, there were several adjournments of the examination. By motion returnable on November 29, 1978, appellant moved for an order directing plaintiffs to appear for an examination pursuant to section 50-h and staying all further proceedings in the action until the examination was completed. By order dated December 4, 1978, Special Term granted the motion and scheduled the examination for January 8, 1979. It was held on that date. Plaintiffs commenced this action by service of a summons and complaint upon the town clerk on August 1, 1979. The appellant Town of Huntington answered on August 27, 1979, interposing an affirmative defense of the Statute of Limitations. Appellant thereafter moved for summary judgment dismissing the complaint. Special Term denied the motion, holding that the one year and 90-day limitations period of subdivision 1 of section 50-i of the General Municipal Law was tolled from December 4, 1978 to January 8,