— In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County (Jones, J.), dated August 10,1982, which denied its motion to dismiss the complaint as barred by the Statute of Limitations and granted plaintiff’s cross motion to strike defendant’s second affirmative defense asserting the Statute of Limitations as a bar to plaintiff’s action. Order reversed, on the law, without costs or disbursements, defendant’s motion granted, plaintiff’s cross motion denied, and complaint dismissed. On May 17, 1980, plaintiff allegedly sustained serious injuries when he fell between two moving subway cars operated by defendant New York City Transit Authority. On or about December 29, 1980 plaintiff moved for leave to serve a late notice of claim upon defendant. That motion was granted on March 25, 1981 and the proposed notice of claim annexed to plaintiff’s papers was deemed served. On October 1,1981, plaintiff commenced this action by service of a summons and complaint. Defendant then moved to dismiss the complaint on the ground that under applicable statutory law, as interpreted by this court (Public Authorities Law, § 1212, subd 2; Serravillo v New York City Tr. Auth., 51 AD2d 1027, affd on mem at App Div 42 NY2d 918), a one year and 120-day Statute of Limitations governs tort actions against defendant New York City Transit Authority and that, therefore, the Statute of Limitations had expired on September 14, 1981 prior to the commencement of this action. Plaintiff cross-moved to strike defendant’s second affirmative defense which asserted the Statute of Limitations as a bar to his action. Plaintiff contended that the period within which the action must be commenced is tolled under the provisions of CPLR 204 (subd [a]) during the pendency of the application for leave to serve a late notice of claim and that, therefore, plaintiff had until December 9,1981 to commence his action. Special Term agreed with plaintiff and, citing Barchet v New York City Tr. Auth. (20 NY2d 1), denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion to strike the affirmative defense of the Statute of Limitations from its answer. Recently, in Giblin v Nassau County Med. Center (95 AD2d 795, 796) this court wrote: “Prior to the 1976 amendment to subdivision five of section 50-e of the General Municipal Law, that section provided that an application for leave to serve a late notice ‘shall be made prior to the commencement of an action to enforce the claim’ (see General Municipal Law, § 50-e, former subd 5). Under the prior law, the Court of Appeals ruled that since a plaintiff could not bring an action until leave was obtained, there was, in effect, a statutory stay which invoked the toll provision of CPLR 204 (subd [a]) (Barchet v New York City Tr. Auth., 20 NY2d 1). This toll was justified on the ground that since a plaintiff’s ability to sue depended upon an action by an entity outside of his control, it would be unjust to extinguish the right to sue based on delay by that external body (Santaniello v De Francisco, 74 Mise 2d 229, 232-233, affd 44 AD2d 831). However, the 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law changed the underlying basis of the Barchet decision by providing: ‘[a]n application for leave to serve a late notice shall not be denied on the ground that it was made *820after commencement of an action against the public corporation’ (L 1976, ch 745, § 2). Since the plaintiff could have brought his action either before or at the same time as his application for leave to serve a late notice of claim, or even during the pendency of the application (see Pierson v City of New York, 56 NY2d 950; Corey v County of Rensselaer, 88 AD2d 1104, mot for lv to app den 57 NY2d 602; but see Colantuono v Valley Cent. School Dist., Orange County, 90 Mise 2d 918), there was no statutory stay (Corey v County of Rensselaer, supra), and the Barchet rule no longer applies.” That holding is controlling in this case. Accordingly, the complaint should be dismissed as untimely. Gibbons, J. P., Gulotta and Niehoff, JJ., concur.