Plaintiff alleges that he "sustained property damage, personal injury and lost wages as a result of [a] collision" on November 16, 2005, when he "was rear-ended by a New York City bus." (See Affidavit in Support, ¶ ¶ 1, 2.) Because he failed to serve a timely notice of claim on either defendant New York City Transit or defendant City of New York (see Public Authorities Law § 1212 [2], [4]; General Municipal Law § 50-e), he now moves for leave to serve late notice on both Defendants. At oral argument on the motion, however, Plaintiff conceded that, as to defendant City of New York, his motion must be denied, because it was not made within one year and ninety days after any cause of any action against the City would have accrued. (See General Municipal Law § 50-e [5], § 50-i.)

Plaintiff's notice of claim against the New York City Transit Authority was due no later than February 14, 2006, which is ninety days from accrual of any cause of action by reason of the November 16, 2005 collision. (See Public Authorities Law § 1212 [2], [4]; General Municipal Law § 50-e.) On February 15, 2006, one day late, Plaintiff served a form "Claim Against NYC Transit for Personal Injury" and a form "Claim Against NYC Transit for Property Damage," which were returned to him by the Transit Authority because they were not served within 90 days after the date of the accident. The notices were indeed untimely, even though only one day late. (See Pugh v Board of Educ. Cent. Dist. No. 1-Fayetteville-Manlius School Dist., 38 AD2d 619, 620 [3d Dept 1971], aff'd 30 NY2d 968 [1972]; Mcgarty v City of New York, 14 Misc 3d 1214 [A], 2007 NY Slip Op 50031 [U], * 4 [Sup Ct, NY County].)

Plaintiff commenced this action on February 7, 2007 by filing a summons and complaint, and made this motion by service on March 12, 2007. The Court is "without authority" to grant Plaintiff [*2]leave to serve late notice of claim (or to deem those filed one day late as timely nunc pro tunc) if Plaintiff's motion was made after the expiration of the statute of limitations applicable to his claim. (See General Municipal Law § 50-e [5]; Middleton v New York City Transit Authority, 28 AD3d 366, 367 [1st Dept 2006]; Small v New York City Transit Authority, 14 AD3d 690, 691 [2d Dept 2005].)

For purposes of this motion, the Court accepts the Transit Authority's concession that the applicable statute of limitations is no less than one year and 90 days. (See Affirmation in Opposition, ¶ ¶ 6, 10; Public Authorities Law § 1212 [2]; but see id., § 1212 [4].) But Plaintiff maintains, relying on Serravillo v New York City Transit Authority (51 AD2d 1027 [2d Dept 1976], aff'd 42 NY2d 918 [1977]), that the statute of limitations is, in effect, one year and 120 days. The commencement of the action on February 7, 2007 is timely in either event. But, if the Transit Authority is correct, and Plaintiff was required to move for leave to serve late notice within one year and 90 days of the accident, then the motion served on March 12, 2007 is itself too late, and the Court cannot grant it. If, however, Plaintiff is correct, and one year and 120 days is the measure, his motion is timely, and the Court may proceed to consider those factors that would govern its discretion (see General Municipal Law § 50-e [5].)

The Second Department in Serravillo (51 AD2d 1027) addressed a plaintiff's motion to dismiss an affirmative defense of statute of limitations in the defendant Transit Authority's answer. Under Public Authorities Law § 1212 (2), "[e]xcept in an action for wrongful death, an action against the authority founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim was based." The court in Serravillo noted that the plaintiff had not instituted her action within that period. But the Public Authorities Law also provides that a plaintiff must allege in the complaint instituting an action that "at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority, . . . and the authority has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment." (See Public Authorities Law § 1212 [1].) The plaintiff in Serravillo had filed a timely notice of claim with the Transit Authority. (See Serravillo v New York City Transit Authority, 51 AD2d at 1027.)

The court in Serravillo concluded that the 30-day waiting period in Public Authorities Law § 1212 (1) is a "statutory prohibition" within the meaning of the tolling provisions of CPLR 204 (a), so that the plaintiff "was entitled to the benefit of a 30-day extension of the one year and 90-day Statute of Limitations contained in subdivision 2 of section 1212." (See id., at 1027-28.) Since the plaintiff had, in effect, one year and 120 days to commence her action, it was timely. (See id., at 1028.) The Court of Appeals affirmed on the Second Department's opinion. (42 NY2d 918.)

Serravillo did not address the period of time during which a claimant must seek leave to serve a late notice of claim. The plaintiff in Serrivillo had served a timely notice of claim, which had triggered the 30-day waiting period and, therefore, the 30-day toll of the statute of limitations. Serravillo is still good law (see Scheja v Sosa, 4 AD3d 410, 410-11 [2d Dept 2004]), but does not, on its terms, help a plaintiff who did not serve a timely notice of claim. In short, there is no automatic 30-day extension to the statute of limitations; the 30-day toll arises upon service of a [*3]timely notice of claim, or after leave is granted to serve late notice (see Davis v New York City Transit Authority, 90 AD2d 819, 819 [2d Dept 1983], rev'd on other grounds 61 NY2d 67 [1984].)

Some confusion is created, however, by statements in at least two First Department opinions that a plaintiff may seek leave to serve a late notice of claim upon the Transit Authority until the expiration of one year and 120 days from the date of the accident. (See Reis v Manhattan and Bronx Surface Transit Operating Authority, 161 AD2d 288, 288 [1st Dept 1990]; Rosas v Manhattan and Bronx Transit Operating Authority, 109 AD2d 647, 647 [1st Dept 1985].) No authority is cited for these statements other than Public Authorities Law § 1212 (2), which says one year and 90 days. The confusion is not ameliorated by a subsequent First Department opinion which cites authority stating a one-year-and-120-day limit for the existence of a one-year-and-90-day limit. (See Collins v Manhattan & Bronx Surface Transit Operating Authority, 192 AD2d 464, 464 [1st Dept 1993].)

The Court is confident, however, both from reading Serravillo and numerous subsequent opinions that leave to serve late notice of claim upon the Transit Authority, on a claim governed by Public Authorities Law § 1212 (2), must be sought within one year and 90 days from the date of the accident. (See Luka v New York City Transit Authority, 63 NY2d 667, aff'g 100 AD2d 323, 325 [1st Dept 1984]; Polsky v Metropolitan Transit Authority, 37 AD3d 243, 243 [1st Dept 2007]; Small v New York City Transit Authority, 14 AD3d 690, 691 [2d Dept 2005]; Jackson v New York City Transit Authority, 274 AD2d 501, 501 [2d Dept 2000]; Matter of Jalloh v New York City Transit Authority, 256 AD2d 410, 411 [2d Dept 1998].) Granted, none of these subsequent opinions discussed or noted Serravillo, presumably because it is inapposite.

Plaintiff's motion for leave to serve late notice of claim must be denied.

August 13, 2007___________________

Jack M. Battaglia

Justice, Supreme Court