Atkins v. County of Chautauqua

5 A.D.3d 1102, 773 N.Y.S.2d 331, 2004 N.Y. App. Div. LEXIS 2891

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered December 23, 2002. The order denied defendant’s motion to dismiss the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion to dismiss the complaint. Contrary to defendant’s contention, this action is not jurisdictionally defective based on plaintiffs failure to purchase a second index number following a successful pre-action application for leave to serve a late notice of claim (see Rybka v New York City Health & Hosps. Corp., 263 AD2d 403, 404-405 [1999]; Ruiz v New York City Hous. Auth., 216 AD2d 258 [1995]; cf. Venditti v Town of Alden, 239 AD2d 910 [1997]). Also contrary to defendant’s contention, the action is not time-barred. The statute of limitations was tolled when plaintiff applied for leave to serve a late notice of claim, and the statute began to run again only when the court decided the application, not when defendant advised plaintiff and the court that it would not oppose the application (see Giblin v Nas sau County Med. Ctr., 61 NY2d 67, 72-74 [1984]; Barchet v New York City Tr. Auth., 20 NY2d 1, 6 [1967]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Gorski and Hayes, JJ.