BAITY v. CITY OF BUFFALO (2018)

MEMORANDUM AND ORDER

Plaintiff commenced this action asserting various tort claims under state law against defendants as a result of being arrested, detained, and then released on August 7, 2006 without charges being filed.  Plaintiff timely served a notice of claim against defendant City of Buffalo, and commenced this action against defendants on July 15, 2008.  Plaintiff appeals from an order that, inter alia, granted defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.  We affirm.

We reject plaintiff's contention that defendants waived their statute of limitations defense because their motion was made more than 60 days after interposing their answer.  The 60–day waiver rule does not apply to motions to dismiss based on the statute of limitations (see Siegel, N.Y. Prac § 111 at 208–209 [5th ed 2011];  see also Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 327, 921 N.Y.S.2d 619, 946 N.E.2d 717 [2011] ).

We reject plaintiff's further contention that a three-year statute of limitations applies to the claims she asserts under New York's “constitutional tort law.”  General Municipal Law § 50–i(1)(c) provides that 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 (see Broyles v. Town of Evans, 147 A.D.3d 1496, 1497, 47 N.Y.S.3d 605 [4th Dept. 2017] ).  General Municipal Law § 50–i(2) further provides that the limitations period is applicable “notwithstanding any inconsistent provisions of law” (see generally Wright v. City of Newburgh, 259 A.D.2d 485, 486, 686 N.Y.S.2d 74 [2d Dept. 1999] ).  We therefore conclude that Supreme Court properly applied the limitations period under General Municipal Law § 50–i(1)(c) in dismissing the complaint as time-barred (see Drake v. City of Rochester, 96 Misc.2d 86, 93–94, 408 N.Y.S.2d 847 [Sup. Ct., Monroe County 1978], affd for reasons stated 74 A.D.2d 996, 429 N.Y.S.2d 394 [4th Dept. 1980] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

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