Burcroff v. County of Orleans

Order unanimously affirmed, with costs. Memorandum: Defendant county appeals from an order denying its [780] motion to dismiss as time barred a personal injury action brought against it arising out of an alleged highway defect and also denying its application to serve an amended answer alleging that the action was not commenced within one year of the date of service of the notice of claim as provided by section 139 of the Highway Law. We affirm. The accident occurred on September 1, 1978. Plaintiff filed her notice of claim on October 25, 1978 and commenced the action more than one year thereafter — on November 21,1979. Section 139 of the Highway Law prohibits commencement of an action upon the claim “until the expiration of three months after the service of [the] notice.” This provision of section 139 of the Highway Law is a “statutory prohibition” staying commencement of the action under CPLR 204 (subd [a]) which operates to toll the Statute of Limitations for the three-month period (see Pepitone v Smith, 54 AD2d 754; Serravillo v New York City Tr. Auth., 51 AD2d 1027, affd 42 NY2d 918; Forero v Town of Tuxedo, 51 AD2d 443; see, also, 1 Weinstein-KornMiller, NY Civ Prac, par 204.03a). The commencement of plaintiff’s action was therefore timely. (Appeal from order of Orleans Supreme Court, Boehm, J. — amend answer, dismiss complaint.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Moule, JJ.