Cruz by Camales v. City of New York
| Decision Date | 11 January 1994 |
| Citation | 200 A.D.2d 407,606 N.Y.S.2d 211 |
| Parties | Dorothea CRUZ, an Infant, by Her Mother and Natural Guardian, Liberty CAMALES, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and ELLERIN, KUPFERMAN and RUBIN, JJ.
Order of the Supreme Court, New York County (Leona Freedman, J.), entered February 23, 1993, which denied plaintiffs' motion for an extension of time to file a notice of claim and granted defendants' cross motion to dismiss the complaint, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of granting the motion as to the infant plaintiff and denying defendants' cross motion and, except as so modified, affirmed, without costs.
Plaintiff guardian's derivative claim was properly dismissed as barred by the Statute of Limitations (Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331). The toll that applies to the infant's claim does not apply to the guardian's derivative claim (General Municipal Law § 50-e; Matter of Welsh v. Berne-Knox-Westerlo Cent. School Dist., 103 A.D.2d 950, 951, 479 N.Y.S.2d 567, citing Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 265-266, 434 N.Y.S.2d 138, 414 N.E.2d 639).
We disagree with Supreme Court's conclusion that defendants were not apprised of the facts constituting the infant's claim within a reasonable time following her injury. The uncontroverted statement of plaintiff Liberty Camales indicates that, on October 22, 1987, the day after the accident, she telephoned the principal of P.S. 61 to inform her that the infant plaintiff was admitted to Bellevue Hospital because of a fall "at exit number five stairway between the lobby and second floor as a result of a defective stairway condition." School records reflect that, beginning November 6, 1987 until she resumed attendance at P.S. 61 on November 28, 1988, the infant plaintiff received home instruction (Education Law § 2554[18]. Both the absence of any denial that the principal was notified and the documentary evidence are consistent with defendants' knowledge of the circumstances of the accident within a reasonable time after it occurred. We note that placement of a pupil in a special education services program is only made after evaluation by a committee on special education (Education Law §§ 4401; 4401-a; 4402), involving review...
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