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Henry v. City of New York12/20/1999
ases established that, once an infant's interests are protected by a guardian or personal representative, the tolling provisions of CPLR 208 are no longer applicable as the infant is no longer under a disability. The City misconstrues Hernandez and Baez. Neither Hernandez nor Baez holds that the CPLR 208 toll becomes inapplicable when the infant plaintiff retains an attorney or takes steps to pursue litigation. Both Hernandez and Baez involved wrongful death actions where the "person entitled to commence an action" is the decedent's personal representative and not a distributee –– infant or adult (EPTL 5–4.1).
Hernandez concerned an "unusual situation" where there was no personal representative of the decedent's estate and the infant sole distributee was not eligible to receive letters of administration pursuant to SCPA 707(1)(a). No one could commence a wrongful death action until a guardian was appointed for theinfant sole distributee. Thus, the infant's disability was directly linked to identifying a prospective plaintiff (an administrator) and only the appointment of a guardian or the infant's eighteenth birthday could resolve the dilemma. In that rare situation, CPLR 208 tolls the Statute of Limitations for the wrongful death action until the "earliest moment there is a personal representative or a potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first"( id., at 693). Hernandez does not alter the definitional limits of CPLR 208. It bridges a "unique" statutory gap in a limited circumstance ( id.).
In Baez, decedent's will named plaintiff the executrix. Thus, plaintiff could have sought appointment as the personal representative for the estate and commenced the wrongful death action; the infancy toll was inapplicable because the infant distributees were not "entitled to commence the action."
Infant plaintiffs should not be penalized by a parent's compliance with General Municipal Law § 50–e in an effort to protect a right to recovery. Infancy itself, the state of being "a person under the age of eighteen" (CPLR 105 ), is the disability that determines the toll. An interpretation of the infancy toll which measures the time period of infancy based on the conduct of the infant's parent or guardian cuts against the strong public policy of protecting those who are disabled becauseof their age ( see, Valdimer v Mount Vernon Hebrew Camps, 9 NY2d 21, 25; see also, CPLR art 12). Because plaintiffs here were under the age of 18 when their causes of action accrued, they are entitled to the benefit of the infancy toll, and their claims against the City are not time–barred.
The City's remaining contentions are without merit.
Accordingly, the Appellate Division order should be reversed, with costs, and defendant City of New York's motion to dismiss the first and second causes of action of the complaint against it should be denied.
Order reversed, with costs, and defendant City of New York's motion to dismiss the first and second causes of action of the complaint against it denied. Opinion by Judge Wesley. Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur. Judge Rosenblatt took no part.
Decided December 20, 1999
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