| Adam H. v County of Orange |
| 2009 NY Slip Op 07377 [66 AD3d 739] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Adam H. et al., Respondents, v County of Orange et al.,Appellants, et al., Defendants. |
—[*1]
In an action to recover damages for personal injuries, etc., the defendants County of Orangeand Orange County Department of Social Services appeal, as limited by their brief, from somuch of an order of the Supreme Court, Orange County (Giacomo, J.), dated June 12, 2008, asdenied that branch of their motion which was to dismiss the complaint insofar as asserted againstthem, inter alia, on the ground that the plaintiffs failed to serve a notice of claim pursuant toGeneral Municipal Law § 50-e.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendants County of Orange and Orange County Department ofSocial Services which was to dismiss the second cause of action insofar as asserted by theplaintiff Lisa W. against them and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
For the reasons stated in our decision and order on a companion appeal (see Adam H. vCounty of Orange, 66 AD3d 737 [2009] [decided herewith]), the Supreme Court properlydenied that branch of the motion of the defendants County of Orange and Orange CountyDepartment of Social Services (hereinafter the municipal defendants) which was to dismiss thefirst cause of action insofar as asserted by the infant plaintiffs against them.
The Supreme Court, however, erred in denying that branch of the motion of the municipaldefendants which was to dismiss the second cause of action insofar as asserted by the plaintiffLisa W. against them. General Municipal Law § 50-e permits a court to grant anapplication to serve a late notice of claim, but the statute precludes the court from granting anextension that would exceed "the time limited for the commencement of an action by theclaimant against the public corporation" (General Municipal Law § 50-e [5]). Thus, anapplication for the extension may be made before or after the commencement of the action butnot more than one year and 90 days after the cause of action accrued, the applicable limitationsperiod for the commencement of a tort action against the municipal defendants, unless the statutehas been tolled (see General Municipal [*2]Law §50-i [1]; CPLR 208; Pierson v City of New York, 56 NY2d 950, 954 [1982]; Cohen vPearl Riv. Union Free School Dist., 51 NY2d 256, 262-263 [1980]; Wollins v New York City Bd. ofEduc., 8 AD3d 30, 31 [2004]).
Here, the last possible date of alleged sexual abuse of the infant plaintiffs was February 16,2006. The plaintiff mother did not commence this action until October 30, 2007. Since theplaintiff mother failed to move for leave to serve a late notice of claim within theone-year-and-90-day limitations' period applicable to her claim against the municipal defendants,she is foreclosed from seeking that relief. Moreover, since the plaintiff mother is not an infant,she is not entitled to a tolling of the applicable limitations period pursuant to CPLR 208 withrespect to her derivative cause of action (see General Municipal Law § 50-i;Blackburn v Three Vil. Cent. School Dist., 270 AD2d 298, 299 [2000]). Accordingly, thecourt is without authority to permit late service of a notice of claim upon the municipaldefendants with respect to the derivative cause of action asserted by the plaintiff mother in herindividual capacity (see Pierson v City of New York, 56 NY2d at 954-956; Eglit v County of Westchester, 46AD3d 504, 505 [2007]; Matter ofN.M. v Westchester County Health Care Corp., 10 AD3d 421, 423 [2004];Blackburn v Three Vil. Cent. School Dist., 270 AD2d at 299).
The municipal defendants' remaining contentions are either without merit or not properlybefore us. Skelos, J.P., Santucci, Belen and Hall, JJ., concur.