285 A.D. 179 | N.Y. App. Div. | 1954
The plaintiff sustained injuries on May 18, 1952, when she fell on a sidewalk in the city of Watervliet. On February 6, 1953, an order was entered permitting her to serve a notice of claim pursuant to subdivision 5 of section 50-e of the
The charter of the defendant requires the service of a notice of claim as a condition precedent to commencement of an action based upon tort and provides that “ The omission to present such claim * * * and to commence an action thereon within one year from the time of such alleged injuries shall be a bar to any claim or action therefor against the city, but no action shall be brought upon any such claim until three months shall have elapsed after the presentation of the claim to the council. ’ ’ (Watervliet City Charter, § 60; L. 1918, ch. 462.) In effect, a one-year and three-month Statute of Limitations applies to tort claims against the defendant. The period of three months following the presentation of a claim during which no action may be brought should be added to the limitation of one year to obtain the time within which an action may be brought. ‘ ‘ Where the commencement of an action has been stayed * * * by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action.” (Civ. Prac. Act, § 24; Amex Asphalt Corp. v. City of New York, 263 App. Div. 968, affd. 288 N. Y. 721.)
The plaintiff commenced her action approximately one year and eight months after sustaining her injuries. She does not claim that the limitation of time for the commencement of an action against the defendant was extended by reason of any disability set forth in section 60 of the Civil Practice Act. Nor does she assert that the Statute of Limitations was lengthened by reason of the stay provided by sections 571 and 573 of the Civil Practice Act. Her sole contention on this appeal is- — as it was in the court below — that the time limitation contained in the charter was repealed by the enactment of section 50-e of the General Municipal Law.
The plaintiff could have commenced her action between May 9,1953 ■ — ■ the expiration of the three-month waiting- period after the service of the notice of claim — and. August 18, 1953, the end of the period allowed for the commencement of the action. Her failure to do so bars this action. The order should be affirmed, without costs.
Poster, P. J., Coon, Halpern and Imrie, JJ., concur.
Order affirmed, without costs.