Calendar Date: May 2, 2018Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.__________Sussman and Associates, Goshen (Jonathan R. Goldman ofcounsel), for appellant.Kornfeld, Rew, Newman & Simeone, Suffern (Frank T. Simeoneof counsel), for respondents.__________Egan Jr., J.P.Appeals from an order and a judgment of the Supreme Court(Gilpatric, J.), entered January 25, 2017 and April 13, 2017 inSullivan County, which granted defendants’ motion to dismiss thecomplaint.On February 18, 2014, a fire damaged plaintiff’s residencelocated in the Town of Liberty, Sullivan County. On November 14,2014, plaintiff, contending that defendants’ four volunteer firedepartments had negligently responded to the fire, commenced aspecial proceeding in Supreme Court seeking leave to serve a latenotice of claim (see General Municipal Law § 50-e [5]). On May27, 2015, Supreme Court granted the application, plaintiff serveda notice of claim on defendants on June 19, 2015, and, on October20, 2015, commenced this action against defendants. Defendantsthereafter moved to dismiss the complaint contending, among otherthings, that the action was barred by the one year and 90-daystatute of limitations (see General Municipal Law § 50-i).Plaintiff opposed the motion, arguing that his time to commencethe action was necessarily extended as Supreme Court did notrender a decision on his application to serve a late notice ofclaim until after the requisite statute of limitations hadalready expired. Supreme Court granted defendants’ motion todismiss. Plaintiff now appeals.Pursuant to General Municipal Law, a plaintiff must firstserve a notice of claim against a municipality within 90 daysafter the claim arises (see General Municipal Law § 50-e) andcommence any subsequent tort action against the municipalitywithin one year and 90 days after the claim arises (see GeneralMunicipal Law § 50-i). Because plaintiff’s claims againstdefendants, if any, arise from the fire that occurred on February18, 2014, he was therefore required to file and serve a notice ofclaim by May 19, 2014 and commence any subsequent tort action byMay 19, 2015. Having failed to file and serve his notice ofclaim by May 19, 2014, plaintiff was permitted to, and did,commence a special proceeding seeking leave to file a late noticeof claim. While the applicable one year and 90-day statute oflimitations began to run on February 18, 2014, upon plaintiff’scommencement of the proceeding, the provisions of CPLR 204 (a)operated to toll the remainder of the statute of limitationsuntil the date that the court granted the requested relief, atwhich point the statute began to run once again (see Giblin vNassau County Med. Ctr., 61 NY2d 67, 72 [1984]; Young Soo Chi vCastelli, 112 AD3d 816, 817 [2013]; Matter of Ireland v Hinkle,178 AD2d 823, 824 [1991]; compare Farber v County of Hamilton,158 AD2d 902, 903 [1990]). To put it in mathematical terms, whenplaintiff commenced the proceeding seeking leave to serve a latenotice of claim on November 14, 2014, he had 186 days remainingin order to timely commence this action within the applicablestatute of limitations. As of that date, the statute oflimitations stopped running and did not resume until May 27,2015, when Supreme Court issued its order granting plaintiff’sapplication. Thus, plaintiff had 186 days running from May 27,2015 or until November 29, 2015 to timely commence this action.Since plaintiff commenced this action on October 20, 2015, it wastimely commenced and may now proceed to a determination as towhether it has any merit.Lynch, Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the order and judgment are reversed, on thelaw, with costs, motion denied, and matter remitted to theSupreme Court to permit defendants to serve an answer within 20days of the date of this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
