Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity, pursuant to General Municipal Law § 50-e. A petition for leave to serve a late notice of claim upon a public authority may not be made more than one year and 90 days after the event upon which the claim is based, unless the statute of limitations has been tolled. Here, the petitioner timely commenced this proceeding on November 12, 2019, by filing the order to show cause, the affirmation of counsel, and the verified proposed notice of claim. Because the appellants do not claim that a substantial right would be prejudiced, the affirmation and proposed notice of claim are properly viewed as the petition required to commence a special proceeding, pursuant to CPLR 3026. In addition, the statute of limitations was tolled from the time the proceeding was commenced until the date of the order deciding the petition. Therefore, the petition is timely.
Matter of Cerreta v. County of Suffolk, NY Slip Op 04964 (2d Dep't August 17, 2022)
