WHITESTONE SHOPPING CENTER INC v. NEW YORK CITY OFF TRACK BETTING CORPORATION (1998)

In an action to recover moneys due pursuant to a lease, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated October 21, 1997, which granted the plaintiff's motion for leave to serve a late notice of claim.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion is denied.

The Racing, Pari-Mutuel Wagering and Breeding Law requires that in an action to recover under a lease, a notice of claim must be served within 90 days after the cause of action shall have accrued (see, Racing, Pari-Mutuel Wagering and Breeding Law § 618;  see also, Racing, Pari-Mutuel Wagering and Breeding Law § 514;  Quicksilver Assocs. v. Catskill Regional Off-Track Betting Corp., 213 A.D.2d 389, 624 N.Y.S.2d 872).   It is undisputed that no such notice was served within that time period.

Since Racing, Pari-Mutuel Wagering and Breeding Law § 618 does not provide for service of a late notice of claim, and since General Municipal Law § 50-e is inapplicable to this action, it was improper to have granted the plaintiff's request for leave to serve a late notice of claim and its motion for leave to serve a late notice of claim is denied.

MEMORANDUM BY THE COURT.