Undisclosed-Statute of Limitations: Infancy Toll on Statute Of Limitations Not Terminated By Acts Of Guardian

F&F# 95243A


Caption: Henry v. City of New York

Court: Court of Appeals

Judge: Hon. Wesley, J.

Cite: 94 N.Y.2d 275, 724 N.E.2d 372, 702 N.Y.S.2d 580

Summary: In this lead paint case, The Fitzgerald Law Firm, P.C., persuaded the Court of Appeals that the statute of limitations toll for infancy was not terminated by the guardian’s retention of a lawyer who filed a notice of claim. The decision reversed a unanimous decision of the Appellate Division, Second Department, which had accepted the City of New York’s argument that an infant whose guardian and lawyer took such steps was no longer under a disability because of infancy. Had the Second Department’s decision been allowed to stand, it would have jeopardized the rights of countless infants because of the good-faith actions of their parents or guardians, and created uncertainty as to when the statute of limitations would accrue in particular cases. In addition, since plaintiff’s attorneys often wait to begin an action in a case that involves brain damage to an infant (in order to adequately measure the developmental impact of the hazard, if any), the Second Department’s decision could have resulted in a flood of litigation, including cases where it is not yet known if a significant injury has been incurred.

Facts: Plaintiff Devon Henry was diagnosed as lead poisoned by February, 1993 (at which time he was two years old), and plaintiff Eann Henry was diagnosed as lead poisoned by July 1993 (at which time he was less than a year old).

Holdings of the Courts Below:
Because the action was not commenced within the one-year and 90-day period set forth in General Municipal Law Sec. 50-i, the City moved to dismiss the complaint as time-barred. However, the Supreme Court, Kings County, held that the infancy toll under CPLR 208 did not terminate when their parent filed a notice of claim on their behalf.

The Appellate Division, Second Department, reversed, stating that infant plaintiffs were not under a “disability because of infancy” within the meaning of CPLR 208. 244 A.D.2d at 95. The Second Department also stated that because of a 1974 amendment, the protection afforded by CPLR 208 was not based on the prospective plantiff’s age but on his or her “disability because of infancy.” Id. at 97. The Second Department held that the two infant plaintiffs no longer were under a “disability because of infancy” because their interests were safeguarded by their mother and by counsel.

Discussion: The Court of Appeals reversed the decision of the Second Department. In brief, the Court of Appeals held that an infant’s action against a municipality is not time-barred when the infant, through a parent or guardian, timely files a notice of claim pursuant to General Municipal Law Sec. 50-e, but fails to begin the action within the one-year and 90-day limitation period of Sec. 50-i. “We hold that CPLR 208 tolls a Statue 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.” 94 N.Y.2d at 278.

The Court first noted that it had “consistently recognized the special status that is accorded an infant plaintiff by virtue of the infant’s tender age; that status is not altered by the action or inaction of the infant’s parent or guardian.” 94 N.Y.2d at 279-80.

The Court then pointed to decisions from all four departments of the Appellate Division stating that the tolling provisions of CPLR 208 apply even though a timely notice of claim has been serviced on an infant’s behalf. The Court was not persuaded by the City’s arguments that amendments subsequently made to CPLR 208 in 1974 and 1975 were intended to change the application of the infancy toll. In addition, the Court distinguished two other cases relied upon by the City, stating that they dealt with different issues involving decedents’ personal representatives.

Finally, the Court noted that “[a]n 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 because of their age.” 94 N.Y.2d at 283.