Bellows v. County of Montgomery

42 A.D.2d 1020, 348 N.Y.S.2d 248, 1973 N.Y. App. Div. LEXIS 3326

Opinion

Appeal from an order of the Supreme Court at Special Term, entered May 17, 1971 in Montgomery County, which granted defendant’s motion to dismiss the complaint and from the judgment entered thereon. The action, commenced by service of a summons and complaint on January 11, 1971 to recover damages for blasting operations allegedly performed by defendant from September 1 through September 8, 1969, was properly dismissed since it was-not commenced within one year and 90 days after the happening of the event upon which the claim was based (General Municipal Law, § 50-i), the tolling provision afforded by CPLR 204 (subd. [a]) being inapplicable here (Bathbwn V. Village of Waverly, 35 A D 2d 227, 228). CPLR 203 (subd. [b], par. 5) is of no aid to plaintiffs since there is no proof that the summons was delivered to the Sheriff for service upon the defendant before the limitation period of section 50-i of the General Municipal Law had run (1 Weinstein-Korn-Miller, N. T. Civ. Prae., par. 203.18). Order and judgment affirmed, without costs. Staley, Jr., J, P., Greenblott, Cooke, Main and Reynolds, JJ., concur.