dissent and vote to reverse in the following memorandum by Kane, J. Kane, J. (dissenting). We dissent. Since the tolling provisions of CPLR 205 apply to the period of limitation contained in section 50-i of the General Municipal Law for the commencement of an action against a municipality (Smith v Rensselaer County, 52 AD2d 384), plaintiffs commencement of this action within six months after the entry of the order of the Court of Appeals affirming the dismissal of his compensation claim was timely (Hotaling v General Elec. Co., 12 NY2d 310). Unlike the situation in Smith v Rensselaer County (supra), plaintiff here did not serve a notice of claim within the 90 days provided for in section 50-e of the General Municipal Law and we agree with the majority that CPLR 205 does not apply to this time period since it is a condition precedent. However, we cannot agree with the majority’s conclusion that Special Term correctly dismissed plaintiffs complaint, for to so hold would lead to an intolerable injustice. We must adhere to the spirit of the Court of Appeals decision in Hotaling v General Elec. Co. (supra, p 314), which stated that it was "never intended that [a litigant] had to select a forum at his peril, especially in a case where there may be doubt as to the proper forum.” Thus, in view of the fact that plaintiff was hospitalized for a year following his accident and did not apply for leave to serve a late notice of claim because he felt that the notice of claim he did serve following the Court of Appeals decision in his compensation claim was timely, a determination should be made as to whether or not the time to serve a late notice of claim should be extended. Accordingly, we would reverse and remit this matter to Special Term so that plaintiff may make application for leave to serve a late notice of claim if he be so advised. [94 Misc 2d 991.]