Whitestone Shopping Center, Inc. v. New York City Off-Track Betting Corp.

256 A.D.2d 331, 683 N.Y.S.2d 274, 1998 N.Y. App. Div. LEXIS 13173

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1998
• Status: Published

Opinion

—In an action to recover moneys due pursuant to a lease, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated October 21, 1997, which granted the plaintiffs motion for leave to serve a late notice of claim.

Ordered that the order is reversed, on the law, without costs or disbursements, and the motion is denied.

The Racing, Pari-Mutuel Wagering and Breeding Law requires that in an action to recover under a lease, a notice of claim must be served within 90 days after the cause of action shall have accrued (see, Racing, Pari-Mutuel Wagering and Breeding Law § 618; see also, Racing, Pari-Mutuel Wagering and Breeding Law § 514; Quicksilver Assocs. v Catskill Regional Off-Track Betting Corp., 213 AD2d 389). It is undisputed that no such notice was served within that time period.

Since Racing, Pari-Mutuel Wagering and Breeding Law § 618 does not provide for service of a late notice of claim, and since General Municipal Law § 50-e is inapplicable to this action, it was improper to have granted the plaintiffs request for leave to serve a late notice of claim and its motion for leave to serve a late notice of claim is denied. Bracken, J. P., Santucci, Krausman and Florio, JJ., concur.