Whether an infant's claim against a municipality is time-barred when a parent or guardian files a timely notice of claim according to General Municipal Law § 50-e but fails to commence the action within the one year and ninety day limitation period of General Municipal Law § 50-i.

No. N.Y. C.P.L.R. 208 tolls the statute of limitations for the period of infancy and that toll is not terminated by a parent or guardian taking actions to pursue the infant's claim. When the infant is the real party to the action, representation by the infant's parent or guardian does not interfere with the infant's right to bring the action anytime during infancy pursuant to N.Y. C.P.L.R. 208.

Plaintiffs in this case are two infants that were allegedly exposed to lead paint in a City-owned apartment. Through their mother and counsel, Plaintiffs filed a timely notice of claim against the City pursuant to General Municipal Law § 50-e and alleged that the City was negligent in the ownership, maintenance, and control of the apartment. Plaintiff Evon Carmen Henry, the mother of the infants, later commenced the action against the City noting that she had timely filed notices of claims for her sons and that the City had conducted a statutory hearing but had not settled or adjusted the claims. Her complaint alleged claims for each child's injuries and two derivative claims for loss of services. Defendant moved to dismiss the claim as time-barred because Plaintiff had failed to commence the action within the one year and ninety day limitation period outlined in General Municipal Law § 50-i.

The supreme court dismissed the derivative claims but denied the City's motion to dismiss the claims asserted on behalf of the infant Plaintiffs holding that the Statute of Limitations was tolled pursuant to N.Y. C.P.L.R. 208. The court also noted that the City was attempting to turn the filing of the notice of claim into a penalty against the infant Plaintiffs. The Appellate Division reversed, holding that the Statute of Limitations toll was nullified when the infants' mother and counsel assumed a position of control over their legal affairs. Further, as a result of a 1974 amendment, the court noted that statute no longer afforded protection due to age, but rather applied only when a plaintiff is under a disability because of infancy. Here, the Appellate Division concluded that infant Plaintiffs were not under a disability because of infancy since their interests were protected by their mother and counsel.

The Court of Appeals reversed holding that the infant Plaintiffs' suits against the City were not time-barred. Under N.Y. C.P.L.R. 208, the Statute of Limitations for a legal claim is tolled during the period of infancy as long as the person entitled to file the claim is under a disability because of infancy. Despite the City's arguments to the contrary, the Court held that the phrase "disability because of infancy" applies as long as the person is under the age of eighteen and that this special status is not altered by the action or inaction of the infant's parent or guardian. Citing prior decisions involving infancy claims, the Court further held that in situations where the infant is the real party to the action, such as in this case, a right of action remains with the infant regardless of who may actually file the infant's claim. The Court mentioned that this outcome supports the strong public policy of protecting those who are disabled or limited in their ability to represent themselves because of their young age.

The City argued that the tolling protection afforded by N.Y. C.P.L.R. 208 was aimed at protecting a person's ability to commence an action and, therefore, a person's age should not matter per se. To support this intention, the City pointed to the legislative amendment to N.Y. C.P.L.R. 208 that replaced the strict age requirements with the phrase "disability because of infancy." The Court rejected this argument, holding that the legislature never meant to limit an infant's right of action in such a manner. The Court noted that the term "disability because of infancy" was merely a drafting and stylistic choice since in conjunction with the amendment at issue, the Legislature included a definition for the terms "infant" and "infancy" in the N.Y. C.P.L.R. Further, there was no indication that the Legislature intended to change the application of the infancy toll through the amendment. Furthermore, the Court distinguished two cases advanced by the City in support of their argument because in both cases, unlike the present one, the infant was not the real party to the action.