Lazan v. City of New York

213 A.D.2d 381, 624 N.Y.S.2d 869, 1995 N.Y. App. Div. LEXIS 2471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1995
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries and wrongful death, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated August 16, 1993, as granted that branch of the cross motion of Mary Ann Fasciano, as administratrix of the estate of Andrew T. Brooks, Sr., which was to dismiss the complaint insofar as it is asserted against her as time barred under SCPA 1810. The appeal brings up for review so much of an order of the same court, dated November 24, 1993, as, upon reargument, adhered to the original determination (see, CPLR 5517 [a]).

Ordered that the appeal from the order dated August 16, 1993, is dismissed, as that order was superseded by the order dated November 24, 1993, made upon reargument; and it is further,

Ordered that the order dated November 24,1993, is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appellants filed a notice of claim and an amended notice of claim in the Surrogate’s Court against the estate of Andrew T. Brooks, Sr., for $33,000,000. The claim was rejected by notice dated May 7, 1992, and was received by the appellants’ attorney on May 11, 1992. The appellants did not commence the instant action in the Supreme Court, Queens County, until October 27, 1992. Accordingly, pursuant to SCPA 1810, this action is time-barred against the estate (see, e.g., Homemakers Inc. v Williams, 131 AD2d 636; Braloff v Greenberg, 284 App Div 1054). Bracken, J. P., Sullivan, Miller and Goldstein, JJ., concur.