Fuller v. City of Buffalo

—Order insofar as appealed from unanimously reversed on the law without costs and application denied in part in accordance with the following Memorandum: Supreme Court should have denied that portion of the application for leave to file a late notice of claim that asserts a derivative claim for damages. The Statute of Limitations’ toll for infancy does not apply to a parent’s derivative cause of action (see, Rivera v Berkeley Super Wash, 44 AD2d 316, 326, affd 37 NY2d 395; D’Andreia v County of Suffolk, 112 AD2d 397, 398). Because the instant application was made more than one year and 90 days from accrual of the derivative cause of action, the court lacked authority to permit the late filing of the derivative claim (see, Pierson v City of New York, 56 NY2d 950, 954; Omni Group Farms v County of Cayuga, 178 AD2d 977). (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Late Notice of Claim.) Present—Balio, J. P., Lawton, Wesley, Callahan and Davis, JJ.