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Henry v. City of New York12/20/1999
99 N.Y. Int. 0178.
2 No. 142 [99 NY Int. 0178]
Decided December 20, 1999
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The issue before us is whether an infant's action against a municipality is time–barred when the infant through a parent or guardian timely files a notice of claim pursuant to General Municipal Law § 50–e, but fails to commence the action within the one year and ninety day limitation period of GeneralMunicipal Law § 50–i. We hold that CPLR 208 tolls a Statute of Limitations for the period of infancy, and the toll is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim. Therefore, the infant plaintiffs" suit against the City of New York in this case is not time–barred.
In February 1993, plaintiff Evon Carmen Henry discovered that her three–year–old son Devon had been exposed to lead paint. Five months later, Evon received medical confirmation that her other son, Eann (11 months old), had also been exposed to lead paint. Evon hired an attorney and timely filed a notice of claim for each child pursuant to General Municipal Law § 50–e. Each claim alleged that the infant plaintiff ingested lead paint while living in a City–owned apartment and that the City was negligent in the ownership, maintenance and control of the apartment.
In January 1995, plaintiff commenced this action alleging that she had timely filed notices of claim for her sons, that the City had conducted a statutory hearing and that the City had not settled or adjusted the claims. The complaint alleged a claim for each child's injuries and two derivative claims by Evon for loss of services. Because the action was not commenced within the one year and ninety day period set forth in General Municipal Law § 50–i, the City moved to dismiss the complaint as time–barred.
Supreme Court dismissed the derivative causes of action, but denied the City's motion with regard to the causes of action asserted on behalf of infant plaintiffs, holding that the infancy toll under CPLR 208 did not terminate when their parent filed a notice of claim on their behalf. The court noted that the City sought, in effect, "to turn the benefit it received by the filing of the notice of claim during infancy into a penalty against infant plaintiffs because the parent or guardian has failed to commence an action within one year and ninety days" ( Henry v City of New York, Sup Ct, Kings County, June 3, 1997, Bruno, J., index No. 2233/95 [citing Reid v Braithwaite, NYLJ, Feb 26, 1997, at 26, col 4]).
The Appellate Division reversed (244 AD2d 93). Relying on this Court's decisions in Hernandez v New York City Health and Hosps. Corp. (78 NY2d 687) and Baez v New York City Health and Hosps. Corp. (80 NY2d 571), the Appellate Division determined that infant plaintiffs were not under a "disability because of infancy" within the meaning of CPLR 208 (244 AD2d, at 95). The court also noted that as a result of a 1974 amendment, CPLR 208 no longer affords protection by reason of the age of a prospective plaintiff, but rather applies only when the plaintiff is under a "disability because of infancy" ( id., at 97). The Appellate Division concluded that Devon and Eann
no longersuffered a "disability because of infancy" as their interests were protected by their mother and counsel. We disagree.
Analysis
CPLR 208 provides that where the "person entitled to commence an action is under a disability because of infancy * * * at the time the cause of action accrues," the Statute of Limitations is tolled for the period of disability. The
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