509 Sixth Ave. Corp. v. New York City Transit Authority

• Decision Date: 21 December 1965
• Citation: 265 N.Y.S.2d 429,24 A.D.2d 975
• Parties: 509 SIXTH AVENUE CORP., Plaintiff-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, and The City of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 429

265 N.Y.S.2d 429

24 A.D.2d 975

509 SIXTH AVENUE CORP., Plaintiff-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, and The City of New York, Defendant.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1965.

J. Morgulas, New York City, for plaintiff-respondent.

A. Satran, Brooklyn, for defendant-appellant.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and STEUER, JJ.

PER CURIAM.

Order, entered April 9, 1965, denying the motion to dismiss the complaint on the ground that the action is barred by the statute of limitations contained in Section 1212 of Public Authorities Law, unanimously reversed, on the law, without costs and disbursements; and motion to dismiss plaintiff's complaint granted, with taxable costs, upon the ground that plaintiff has failed to commence an action within the limitation period prescribed by said section. The plaintiff's claim for damages for trespass fully matured on October 8, 1961, when it sold and divested itself of ownership of the premises. The cause of action then accrued within the meaning of the statutory provisions requiring the bringing of suit within one year (and 30 days--see Amex Asphalt Corp. v. City of New York, 263 App.Div. 968, 33 N.Y.S.2d 182, affd. 288 N.Y. 721, 43 N.E.2d 97;) 'after the cause of action therefor shall have accrued'. (Public Authorities Law, § 1212, supra, see Trela v. Village of Green Island, 14 A.D.2d 970, 221 N.Y.S.2d 540; Christian v. Village of Herkimer, 5 A.D.2d 62, 169 N.Y.S.2d 81, affd. 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122; Bernreither v. City of New York, 123 App.Div. 291, 107 N.Y.S. 1006, affd. 196 N.Y. 506, 89 N.E. 1096; Feczko v. New York City Transit Auth., 15 Misc.2d 667, 182 N.Y.S.2d 385; Javet v. City of New York, n. o. r., 187 Misc. 841, 65 N.Y.S.2d 6.) The limitation period applicable is one year and 30 days and not the period of one year and 90 days prescribed by General Municipal Law ( § 50-i). (See Hlanko v. City of New York, 23 A.D.2d 840, 259 N.Y.S.2d 661; Heeren v. New York City Transit Authority, Sup., 231 N.Y.S.2d 993.) We agree with Special Term that, as a general rule, the Transit Authority, by proper agreement, could extend the generally prescribed limitation period for the bringing of an action by plaintiff upon its claim; and that the Transit Authority could waive the statute or be estopped from urging it as a defense. (Cf. Robinson v. City of New York, 24 A.D.2d 260, 65 N.Y.S.2d 566 decided herewith.) But the written stipulation between the parties staying suit upon plaintiff's claim for a period of time, which terminated long before the expiration of the prescribed statutory period of limitations, should not be given the effect of extending the prescribed limitation period and does not, in and of itself, form...