In re Hickman

148 A.D.2d 1004, 539 N.Y.S.2d 236, 1989 N.Y. App. Div. LEXIS 2571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1989
• Status: Published

Opinion

Order unanimously reversed on the law without costs and application denied. Memorandum: On October 7, 1985, Christopher Cummings was struck by an automobile and killed in a "hit-and-run” accident. Petitioner was appointed administratrix of the estate on April 8, 1986. A notice of motion for leave to file a late notice of claim was mailed to the Motor Vehicle Accident Indemnification Corporation (MVAIC) on November 21, 1986 pursuant to Insurance Law § 5208 (c). Petitioner’s motion was granted by order entered December 18, 1986. Petitioner, by notice of motion dated October 28, 1987, moved for leave to commence an action against MVAIC pursuant to Insurance Law § 5218. MVAIC opposed the motion on the ground that the action was time barred because of the two-year Statute of Limitations applicable to wrongful death actions (EPTL 5-4.1). Petitioner asserted that she was entitled to a tolling of the wrongful death Statute of Limitations during the pendency of her prior application, relying on CPLR 204 (a). Special Term granted petitioner’s motion. We reverse.

CPLR 204 (a) provides: "Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced”. In our view, the fact that petitioner applied for leave to serve a late notice of claim pursuant to Insurance Law § 5208 did not constitute statutory prohibition that tolled the running of the two-year period. When the time expired for bringing a wrongful death action in this case, no application for leave to serve a late notice of claim (Insurance Law § 5208) or for leave to sue MVAIC (Insurance Law § 5218) was then pending and undecided. The prior application seeking leave to serve a late notice of claim did not toll the Statute of Limitations because petitioner could have moved for leave to sue before the expiration of the two-year limitations period (see, Matter of Velez v MVAIC, 56 AD2d 764; Christian v Village of Herkimer, 5 AD2d 62, affd 5 NY2d 818; Matter of Schultz v MVAIC, 84 Misc 2d 640). Indeed, the prior application was terminated when petitioner was granted leave to file a late notice of claim on December 18, 1986, almost 10 months before the expiration of the two-year Statute of Limitations. The court in Velez (supra, at 765) stated "[tjolling could occur only during the pendency of the proceeding seeking leave” (see also, Giblin v Nassau County Med. Center, 61 NY2d 67, 74). In view of our determination, we do not address the issue of whether the proceeding on the section 5208 (c) application was commenced when the motion papers were mailed to MVAIC or when the motion papers were personally delivered to MVAIC. (Appeal from order of Supreme Court, Wayne County, Parenti, J. — permission to bring action.) Present — Denman, J. P., Green, Pine, Balio and Davis, JJ.