Lacks v. Marcus

• Decision Date: 08 March 1979
• Citation: 68 A.D.2d 815,414 N.Y.S.2d 139
• Parties: Irene R. LACKS, Plaintiff-Respondent, v. Kenneth R. MARCUS et al., Defendants-Appellants. K. Richard MARCUS et al., etc., Plaintiffs-Appellants, v. Irene R. LACKS, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 139

414 N.Y.S.2d 139

68 A.D.2d 815

Irene R. LACKS, Plaintiff-Respondent, v. Kenneth R. MARCUS et al., Defendants-Appellants.

K. Richard MARCUS et al., etc., Plaintiffs-Appellants, v. Irene R. LACKS, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

March 8, 1979.

P. A. Liapakis, New York City, for plaintiff-respondent and defendant-respondent.

E. S. Cohn, New York City, for defendants-appellants and plaintiffs-appellants.

Before KUPFERMAN, J. P., and BIRNS, SANDLER, LANE and SILVERMAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered March 8, 1978, granting reargument and on reargument adhering to the initial determination granting respondent's motion to consolidate the two above-entitled actions and denying appellants' motion to dismiss the complaint of Irene Lacks, is modified, on the law, to the extent of granting appellants' motion to dismiss respondent's first cause of action in the complaint verified by Irene Lacks on September 28, 1977, as barred by the statute of limitations, and otherwise affirmed, without costs and without disbursements. The appeal from the portion of the order granting consolidation is deemed abandoned.

Appeal from the order of Supreme Court, New York County, entered January 25, 1978, is dismissed as academic, without costs and without disbursements, said order being superseded by the order of March 8, 1978.

The first cause of action is one for malpractice. It accrued, if at all, in 1970 or earlier. The present action was instituted September 28, 1977. The statute of limitations in actions for malpractice is three years. CPLR § 214 subd. 6. The action is thus barred unless the statute of limitations has been tolled. It is argued that the statute was tolled by CPLR § 208 in that "at the time the cause of action accrues" plaintiff was "insane" and that therefore "the time within which the action must be commenced shall be extended to three years after the disability ceases . . . ." CPLR § 208. There is no showing whatever that plaintiff was insane at the time the cause of action accrued in 1970. It is true that a year and a half later a guardian ad litem was appointed for plaintiff in one of her lawsuits. But even that guardianship ad litem terminated on March 26, 1974, more than three years before the commencement of this action. Nor was the guardian appointed on a finding of insanity.

In interpreting the meaning of the word "insane" as used in CPLR § 208, we should be "guided by the manifest purpose of the tolling statutes, to wit, 'to relieve from the strict time restrictions any person who actually lacks the ability and capacity, due to mental affliction, to pursue his lawful rights' (Sobin v. Frisch & Sons, 108 N.J.Super. 99, 104, 260 A.2d 228)." Matter of Hurd v. County of Allegany, 39 A.D.2d 499, 502, 336 N.Y.S.2d 952, 956 (4th Dept.1972). On these papers, we are unable to see any evidence that plaintiff was "insane" within the meaning of the statute. Whatever disability plaintiff had was surely not a disability to pursue her lawful rights or to sue. She has been engaged in lawsuits arising out of this and related matters continuously from before 1970 until today. See Lacks v....