Chun Chen v. Allen

255 A.D.2d 286, 679 N.Y.S.2d 320, 1998 N.Y. App. Div. LEXIS 11593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from (1) an order of the Supreme Court, Queens County (Schmidt, J.), entered September 25, 1997, which denied its motion to dismiss the complaint insofar as asserted against it as untimely, and (2) an order of the same court, dated January 20, 1998, which denied its motion which was, in effect, for reargument of the motion to dismiss.

Ordered that the appeal from the order dated January 20, 1998, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order entered September 25, 1997, is reversed, on the law, the motion of the defendant New York City Transit Authority is granted, the complaint is dismissed insofar as asserted against it, and the action against the remaining defendant is severed; and it is further,

Ordered that the appellant is awarded one bill of costs.

Even granting the plaintiff the benefit of the tolls she sought, her action was not timely commenced as against the appellant (see, Public Authority Law § 1212; Burgess v Long Is. R. R. Auth., 79 NY2d 777; Giblin v Nassau County Med. Ctr., 61 NY2d 67; Barchet v New York City Tr. Auth., 20 NY2d 1). Thus, the complaint insofar as asserted against the appellant must be dismissed. Joy, J. P., Friedmann, Krausman and Luciano, JJ., concur.