Henry v. City of NY

• Decision Date: 20 December 1999
• Citation: 702 N.Y.S.2d 580,724 N.E.2d 372,94 N.Y.2d 275
• Parties: DEVON HENRY, an Infant, by His Mother and Natural Guardian, EVON C. HENRY, et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

94 N.Y.2d 275

724 N.E.2d 372

702 N.Y.S.2d 580

DEVON HENRY, an Infant, by His Mother and Natural Guardian, EVON C. HENRY, et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.

Court of Appeals of the State of New York.

Argued November 16, 1999.

Decided December 20, 1999.

Fitzgerald & Fitzgerald, P. C., Yonkers (John E. Fitzgerald, John M. Daly and Eugene S. R. Pagano of counsel), and Michael J. Hutter, Albany, for appellants.

Michael D. Hess, Corporation Counsel of New York City (Kathleen Alberton, Larry A. Sonnenshein and Steven Levi of counsel), for respondent.

David B. Golomb, New York City, and Michael J. Hutter, Albany, for New York State Trial Lawyers Association, amicus curiae.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE and CIPARICK concur; Judge ROSENBLATT taking no part.

OPINION OF THE COURT

WESLEY, J.

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 90-day limitation period of General Municipal 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 90-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 & Hosps. Corp. (78 NY2d 687) and Baez v New York City Health & 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 Eann¹ no longer suffered 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 City contends that although Devon and Eann were infants at the time their causes of action accrued, their "disability because of infancy" ceased when their mother, through counsel, filed timely notices of claim pursuant to General Municipal Law § 50-e on their behalf. Thus, the City argues, CPLR 208 is inapplicable to toll the Statute of Limitations set forth in General Municipal Law § 50-i. The City's position is not supported by CPLR 208 or the prevailing case law interpreting the provision.

This Court has 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 (see, Russo v City of New York, 258 NY 344; Murphy v Village of Fort Edward, 213 NY 397). In Murphy v Village of Fort Edward (supra, 213 NY 397), we noted that an infant's right of action "at its origination is and remains in the infant * * * Infancy does not incapacitate the infant from bringing the action" (id., at 401). When the infant sues by a guardian ad litem, although the guardian may manage the suit and protect the infant's interests, it is the infant who is the real party to the action (id.). Thus, it could not "be justly held * * * that rights accorded by the law to infants are forfeited because a parent did not perform for an infant where performance was excused because of the infancy" (id., at 403). In Russo v City of New York (supra, 258 NY 344), we reaffirmed that "it is the age and capacity of the infant rather than the conduct of its parents and guardians which control" (id., at 348).

Other courts have concluded that the tolling provisions of CPLR 208 apply notwithstanding service of a timely notice of claim on an infant's behalf (see, Rosado v Langsam Prop. Serv. Corp., 251 AD2d 258 [1st Dept]; Sadler v Horvath, 44 AD2d 905 [4th Dept]; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379 [4th Dept]; Abbatemarco v Town of Brookhaven, 26 AD2d 664 [2d Dept]; La Fave v Town of Franklin, 20 AD2d 738 [3d Dept]). In Abbatemarco v Town of Brookhaven (supra, 26 AD2d 664), the Second Department held that the one-year and 90-day time period of General Municipal Law § 50-i did not bar an infant's action against the municipality. The Court specifically noted that "because of the disability of infancy, the bar of the statute never became effective" (id., at 664 [emphasis supplied]). In Rosado v Langsam Prop. Serv. Corp. (supra, 251 AD2d 258), the First Department held that although the infant plaintiff's guardian, represented by counsel, filed a timely notice of claim but then failed to commence the action within the Statute of Limitations, the action was not time-barred. The Court noted that "the initial prosecution of [the infant's] claim by his legal representatives did not preclude him from invoking the CPLR 208 disability toll to prevent the running of the statutory period" (id., at 258).

The City argues that most of these cases are distinguishable because they were based on language no longer found in the statute. Prior to 1974, CPLR 208 provided that the infancy toll applied where "a person entitled to commence an action is, at the time the cause of action accrues, under the age of twenty-one years" (former CPLR 208). Thus, the City argues, the application of former CPLR 208 was defined by the plaintiff's age.

In 1974, the statute was amended; the statute's use of age to define infancy was dropped and the phrase "disability because of infancy" was added. The City views this as a substantive sea change. The infancy disability, in the City's view, is no longer measured by age and is overcome when a parent, legal guardian or attorney takes steps to protect an infant's rights by filing a notice of claim. Thus, according to the City, there is no longer a disability once someone acts on the infant's behalf. We are unpersuaded by this argument.

In 1971, the 26th Amendment to the United States Constitution became effective, reducing the voting age from 21 to 18 for the purpose of State as well as Federal elections (1974 Report of NY Law Rev Commn, reprinted in 1974 McKinney's Session Laws of NY, at 1882). The Legislature ratified the Amendment that same year and made the necessary adjustments to the Election Law. The ratification also raised a number of issues concerning the advisability of reducing the age at which legal "infancy" terminates. In response, the Law Revision Commission undertook a review of the Consolidated and Unconsolidated Laws to determine what statutes should be promptly amended, what statutes should remain as they were and what statutes needed additional study by the Commission (id.).

The 1974 amendment to CPLR 208 was submitted by the Law Revision Commission along with amendments to 52 other statutes (id., at 1883). In conjunction with the amendment to CPLR 208, the Legislature added definitions to the CPLR for the terms "infant" and "infancy." An "infant" is "a person who has not attained the age of eighteen years;" "infancy" means "the state of being an infant" (CPLR 105 [j], as added by L 1974, ch 924). While the Legislature did not include a definition for the term "disability" and did not use the phrase "under the age of eighteen" to delineate those claims to which the toll of CPLR 208 applies, the resulting phrase "disability because of infancy" appears to be nothing more than a stylistic drafting choice.

According to the Law Revision Commission, "amendatory language has been kept to a minimum in order to interfere as little as possible with existing language. New provisions have been adapted to the existing style of...