Personal Injury Action Against City Dismissed As Time-Barred
In Baity v. City of Buffalo, 2018 NY Slip Op 01727 (4th Dep’t Mar 16, 2018), the plaintiff brought suit asserting various tort claims under state law against the defendant as a result of being arrested, detained, and then released on August 7, 2006 without charges being filed. The plaintiff timely served a notice of claim against the defendant City of Buffalo, and commenced action against the defendant on July 15, 2008.
Under General Municipal Law §50-i(1)(c), any action for personal injury against a municipality shall be commenced within one year and 90 days after the happening of the event upon which the claim is based. Pursuant to CPLR §3211, the defendants moved at the trial court level to dismiss the suit as time-barred. The trial court granted the defendant’s motion, and the plaintiff appealed, asserting that the defendant waived its statute of limitations defense because its motion was made more than 60 days after interposing an answer. The plaintiff also contended that a three-year statute of limitations applied to the claims, under New York’s “constitutional tort law.”
The Fourth Department affirmed the decision of the lower court dismissing the case. The Fourth Department held that the 60-day waiver rule does not apply to motions to dismiss based on the statute of limitations, and that General Municipal Law §50-i(1)(c)’s limitation of time to bring the action was controlling.
Prepared by Eric W. Marriott, Esq..