I dissent and vote to affirm. Under the statute (General Municipal Law, § 50-i, subd. 1) the action against the defendant was time-barred. The majority view recognizes this, but invokes the doctrine of equitable estoppel. I fail to see how it properly may be applied here. Section 50-e of the General Municipal Law requires in a case founded upon tort, where a notice of claim is required by law a's a condition precedent to the commencement of an action, that such notice be given within 90 days after the claim arises. If the city desires an examination relative to the extent of the injuries or damages for which the claim is made, it must make such demand within 90 days from the date of filing of the notice of claim (General Municipal Law, § 50-h, subd. 2). Insofar as the claimant is concerned, once the notice of claim is served, he is free 30 days thereafter (General Municipal Law, § 50-i, subd. 1) to commence an action (General Municipal Law, § 50-e, subd. 4), subject only to compliance with the examination if demand therefor be timely made (General Municipal Law, § 50-h, subds. *2662, 5), and to the further limitation that the action must be commenced within 1 year and 90 days after the happening of the event upon which the claim is based (General Municipal Law, § 50-i, subd. 1) (Christian v. Village of Herkimer, 5 A D 2d 62, affd. 5 N Y 2d 818). By the express language of section 50-i, its provisions are applicable “ notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any city charter ” (ibid., subd, 2). Neither the language of section 50-i, nor that of section 50-h operates to extend the time limited by subdivision 1 of section 50-i, for the commencement of an action (ibid., subd. 3). Thus, by express language, the Legislature has made it clear that section 93d-3.1 of the Administrative Code cannot affect the maximum limitation provided for in the General Municipal Law. Moreover, it is expressly provided that a city <( shall have no power to waive the defense of the statute of limitations ” (General City Law, § 20, subd. 5). CPLR 204 (subd. [a]) is not applicable for the action here was not stayed by statute or by a court. Nor was plaintiff under a disability (CPLR 208).
In Vermeule v. City of Corning (186 App. Div. 206) and Vandeweghe v. City of New York (150 Misc. 815) cited in the majority opinion, the actions rested upon contract express or implied. Additionally, in Vandeweghe the city had accepted and used the pavement for the public benefit over a long period of time. The statute involved was not applied retroactively.
There is no absolute binding statutory prohibition against waiver of the defense of limitations and against extension of time for tort suits against an authority as there is for suits against a city. Thus, Feczko v. New York City Tr. Auth. (15 Misc 2d 667) is not applicable (see, also, Planet Constr, Corp. v. Board of Educ. of City of N. Y., 7 N Y 2d 381; cf. Heller v. New York City Housing Auth., 26 Misc 2d 653). In Trustees of Vil. of Bath v. McBride (163 App. Div. 714) also cited, the Village Board was estopped from attacking the legality of deposits in a private banking institution where such deposits had been so made over a long period of time with the knowledge, acquiescence and acceptance of benefits of and by the Village Trustees, though such Trustees had never formally, as a body, designated the bank as the depository as apparently required by the statute.
The statute is definite as to the procedure to be followed where the claim is founded on tort (General Municipal Law, § 50-e, subd. 1; §§ 50-f, 50-g, 50-h, 50-i). Discretion is to be exercised within prescribed limits. Of course in Teresta v. City of New York (304 N. Y. 440) a tort action, the notice of claim *267was timely served but the manner of service was by ordinary mail, rather than personally or by registered mail as then required by statute. The defendant city acknowledged and acted upon the notice. The Court of Appeals analyzed the purpose of the requirement. In reversing and denying dismissal of the complaint the court did state: 1 ‘ present here, in addition to an unequivocal waiver, are elements of estoppel as well ” (p. 443). However, its decision did not rest on estoppel. The 1 year and 90-day limitation in the statute dealing with torts bars stale claims, and provides a cut-off point for the institution of actions invoking the judicial process. The legislative purpose 1 ‘ in enacting section 50-i was to centralize and make ‘ uniform provisions relating to the commencement of actions against municipal corporations.’ (Governor’s Memorandum, 1959 Legislative Annual, p. 458.) ” (La Fave v. Town of Franklin, 20 A D 2d 738.) Of course the determination of the question in La Fave hinged upon the applicability or nonapplicability of section 60 of the Civil Practice Act (now CPLR 208), and cannot serve as authority for extension of the statutory period of limitation when no disability exists. In substance, when the period of limitation to commence an action against a municipality, founded on tort, has expired and no statutory exceptions exist, the defect is fatal and estoppel may not be applied (cf. Brickman v. Town of Oyster Bay, 22 Misc 2d 195). Moreover, when the stipulation of adjournment of examination was entered the time for adjustment of the claim by the Comptroller had expired. But whether or not that were so it could not extend the statutory period for institution of the action (Woodcrest Constr. Co. v. City of New York, 185 Misc. 18, affd. 273 App. Div. 752, mot. for lv. to app. den. 297 N. Y. 1042).
To apply the doctrine of estoppel here is to negate the statutory provisions for time limitations on tort actions against a municipality. The law is clear and, presumably, was known to plaintiff. Even if the doctrine of estoppel could be applied, it would be a question of fact whether, in the circumstances of this case, it should be applied. The determination of that question would necessarily have to await upon the trial. The order appealed from should be affirmed and the affirmative defense be permitted to stand.
Bbbitel, J. P., Rabin and McNally, JJ., concur with Eageb, J.; Stevens, J., dissents in opinion.
Determination of the Appellate Term reversed and vacated on the law, with $50 costs to appellants, and the motion to dismiss the affirmative defense granted, with $10 costs.