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In this case, we conclude that the special infancy toll applicable in wrongful death actions involving sole infant distributees under Hernandez v. New York City Health & Hosps. Corp., is not available for personal injury claims. We therefore affirm the order of the Appellate Division.

Plaintiff EBH is the administrator of the estate of the decedent, EP. EP, born in May 2001, lived with her two young sisters and their mother TR. EP’s biological father, a convicted felon, had abandoned her. In early 2004, TR’s boyfriend, JS, moved in with the family. In May and again in August 2004, EP was taken to health care facilities for treatment of various injuries, including a broken clavicle and head trauma. According to plaintiff, these instances of suspected abuse were reported to defendants County of Greene, County of Greene Mental Health, County of Greene Department of Social Services and/or County of Greene Child Protective Services (collectively, the County defendants). Following the August incident, JS was apparently ordered to leave the family home. However, on November 21, 2004, EP died tragically as a result of injuries intentionally inflicted upon her by JS.

About two weeks later, JS and TR were each charged in connection with EP’s death. TR pleaded guilty to criminally negligent homicide and was subsequently sentenced to a prison term of 1 1/3 to 4 years. Following a jury trial, JS was convicted of second-degree murder and sentenced to a term of 25 years to life imprisonment.

In December 2004, shortly after EP’s death, plaintiff was appointed as the attorney for the children, EP’s sisters, in connection with an abuse and neglect proceeding pending in Family Court against JS and TR. In addition to serving as attorney for the children (formerly referred to as a law guardian) in Family Court, Surrogate’s Court appointed her as the administrator of EP’s estate in October 2006.

Until plaintiff’s application, no one had petitioned Surrogate’s Court to handle the administration of EP’s estate under SCPA 1001 and 707. TR and the biological father were each disqualified because of their felony status. Although the task would have ordinarily fallen to EP’s siblings under the priority of decedent’s relatives established in SCPA 1001(1), they too were ineligible based on their infancy. Because no other relative sought to be appointed guardian for the siblings under article 17 of the SCPA, they had no adult representative who could function as the administrator or consent to anyone else assuming that role. Out of concern for the fate of EP’s siblings, plaintiff pursued appointment as administrator pursuant to the fallback provision of SCPA 1001(8)(b), allowing any qualified petitioner to become an administrator in the court’s discretion.

In the course of fulfilling her duties as attorney for the children and administrator of EP’s estate, plaintiff determined that EP’s siblings had potential claims against the County defendants and private individuals based on their alleged negligence contributing to EP’s death at the hands of JS. On November 16, 2006, plaintiff served a notice of claim on the County defendants in her capacity as administrator of EP’s estate. Five days later, plaintiff commenced this action against the County defendants alleging causes of action for wrongful death and personal injury. Any damages recovered would ultimately benefit the siblings as EP’s sole distributees by intestacy. Plaintiff simultaneously moved pursuant to General Municipal Law § 50–e (5) for leave to file a late notice of claim for the personal injury cause of action.

Supreme Court granted the motion and extended the time to serve the notice of claim to November 16, 2006, the date it was actually filed. Initially, the court determined that the wrongful death claim was timely because the notice of claim was filed within 90 days from plaintiff’s appointment as administrator and the action was commenced within two years of EP’s death, as required by statute. Turning to the personal injury cause of action, the court found that the notice of claim was untimely because it was not filed within 90 days after the claim a TR. Recognizing that it lacked the discretion to extend the time beyond the expiration of the applicable one–year–and–90–day limitations period, the court relied on our decision in Hernandez v. New York City Health & Hosps. Corp., to conclude that the toll afforded by CPLR 208 applied, based on the infancy of EP’s siblings, and, as a result, the statute of limitations did not begin to run until plaintiff’s appointment as administrator in October 2006. In Hernandez, this Court held that the CPLR 208 infancy toll applies when an infant is the sole distributee in a wrongful death action. Relying on the factors in General Municipal Law § 50–e (5), the court granted plaintiff leave to file the late notice of claim.

The Appellate Division reversed and dismissed the personal injury claim, but agreed that the wrongful death claim was timely. The court held that Supreme Court lacked discretion to enlarge the time to serve the late notice of claim because the personal injury claim was time-barred, reasoning: Supreme Court’s reliance on the infancy toll of CPLR 208, on behalf of decedent’s infant distributees, to extend the statute of limitations on the personal injury claim was not proper inasmuch as such a claim is brought on behalf of decedent and is personal to her, not her surviving infant distributees.

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In reaching this result in Hernandez, we were careful to limit our analysis to wrongful death actions authorized by EPTL 5–4.1, emphasizing that such claims belong to a decedent’s distributees rather than the estate standing in place of the decedent. For example, we observed that any damages recovered are exclusively for the benefit of the decedent’s distributees and that the cause of action is not part of and bears no legal relationship to decedent’s estate. Moreover, any damages must be measured by the effect of the wrongful act on the distributes, the pecuniary loss suffered by the individual distributees as a result of decedent’s death. In contrast, we noted that a personal injury action brought under EPTL 11–3.2(b) seeks damages for an injury to the decedent and belongs to the estate. Finally, we stressed that in a wrongful death case involving a sole infant distributee, it is the infant child who has suffered any loss recognized by law.

Hence, even though CPLR 208 applies when the person entitled to commence an action is under a disability because of infancy and the person entitled to bring a wrongful death claim under EPTL 5–4.1 is the estate’s personal representative in Hernandez we employed the CPLR 208 toll based on the infancy of the distributee himself. In that unique context, where no personal representative was otherwise available, it was reasonable to look to the distributee’s infancy status because the wrongful death claim belonged to him and would compensate him for damages that he directly sustained as a result of his mother’s death. As we put it, the distributee was the only person whose interests are at stake in bringing this wrongful death action. In effect, we treated the distributee as the plaintiff under the tolling statute because, for all intents and purposes, the claim was his own.

Following Hernandez, Appellate Division case law has consistently declined to extend the toll rule fashioned in Hernandez outside the wrongful death context. These courts recognized that, unlike a wrongful death claim that directly compensates a decedent’s distributees for their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased-in other words, it is a claim assumed by the estate.

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EPTL 11–3.2(b), referred to as the survival statute, provides that no cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent. As a condition precedent to initiating a personal injury action against a municipality, a notice of claim must be served within 90 days after the claim arises. The action must also be commenced within the statutorily prescribed one–year–and–90–day limitations period. Although a court is authorized to extend the filing of a notice of claim beyond the 90–day period, the time for filing may not be extended beyond the expiration of the applicable statute of limitations.

In this case, EP first sustained injuries at some point in early 2004 and died on November 21, 2004. Since a notice of claim was not filed within 90 days of her death, leave to file a late notice was necessary. The personal injury claim accrued no later than the date of her death and, absent the application of a toll, the one–year–and–90–day limitations period expired in February 2006. Because the request for leave to file a late notice was not made within that time frame, as mandated by General Municipal Law § 50–e (5), an extension of time to file such notice is not statutorily authorized unless the limitations period was tolled.

Plaintiff asserts that the statute of limitations for the personal injury cause of action was tolled under CPLR 208 due to the infancy of EP’s sole distributees-her sisters. In particular, plaintiff submits that Supreme Court appropriately applied the rationale of Hernandez, which held that CPLR 208 tolls the statute of limitations where the sole distributee in a wrongful death action is an infant, to this personal injury claim. While the dissent adopts this position, we cannot agree based on the fundamental distinction between the natures of the two claims.

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Even if the corroborating affidavit were construed to relate also to the allegation in the complaint that the complaining witness is unable to care for herself because of mental disease or defect (a strained construction since the affidavit used the words mental incompetence which parallel those in the paragraph relating to the information furnished by Mr. LC), it is not sufficient to convert the complaint to an information. This is so because the affidavit is not sufficiently clear that it is not based on hearsay. The injury affidavit is susceptible of two equally fair interpretations, the confusion arising from the use of the words upon information and belief. Does the affidavit mean that (to state it differently) the assertion of mental incompetence, which is alleged in the complaint to be upon information and belief, is true or does it mean that Mr. LC has reviewed the complaint and the medical records and that, upon information and belief, the assertion of mental incompetence is true? If the first interpretation is accepted then the affidavit might be sufficient to convert the complaint to an information; if the latter, clearly it is not. 2 Additionally, there is no statement as to Mr. LC’s education or experience to justify the conclusion that he is competent to read, interpret and render an opinion based on medical records, although the defendant has not objected on that ground.

While the Bronx Developmental Center is a school in the Office of Mental Retardation (M.H.L. 13.17) and only mentally retarded persons are admitted as residents (M.H.L. 15.03) 3 there is no allegations in either the complaint or the personal injury affidavit that the complaining witness is a resident of that school. Had there been such an allegation of residence perhaps the court could take judicial notice of the complaining witness’ mental condition 4 but that possibility is not present here.

Accordingly, until the People file a proper corroborating affidavit to the effect that the complaining witness is a person unable to care for herself because of mental disease or defect the court cannot deem the complaint to be an information.

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The charge of endangering the welfare of an incompetent person presents the court with a problem not previously addressed in the reported decisions, namely, the relationship of P.L. 260.25 to the various provisions of the Mental Hygiene Law.

The penal offense occurs when the defendant knowingly acts in a manner likely to be injury to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect (P.L. 260.25). As to this charge the investigator states in the complaint that she observed that at the aforementioned date, time and location the deft did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of complaining witness, who is unable to care for herself because of mental disease or defect, in that the deft did punch complaining witness in her face with closed fist. Of course, the portion of the allegation relating to the punch is based on personal observation but the portion relating to mental disease or defect is an unsupported conclusion. 1 The investigator, to set forth the basis for her assertion as to the complaining witness’ condition, added: Deponent further states that she is informed by LC, Director of Mental Retardation, that complaining personal injury witness have been adjudged to be mentally incompetent.

That statement being hearsay, the People filed a corroborating affidavit by Mr. LC in which he stated: 1. I, LC, Director of Mental Retardation at the Bronx Developmental Center, hereby assert that I have read the accusatory instrument relating to this matter. 2. That I have reviewed the medical records pertaining to complaining witness, the complainant in this case, and that the assertion, upon information and belief, of mental incompetency is true.

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These cases arise out of an undercover operation conducted by a division of the New York State Department of Mental Hygiene into the operations of the Bronx Developmental Center, a school for mentally retarded and developmentally disabled persons (Mental Hygiene Law, § 13.17). It appears that an investigator was placed in the school as an aide in order to observe and report on the actions of the personnel vis-a-vis the residents. The foregoing is not yet part of the record but was revealed by counsel during a bench conference and is mentioned in order to set forth the background for what follows herein.

The defendants are charged in three separate dockets with various acts committed against various residents of the school. Each docket charges the defendant with attempted assault in the third degree (P.L. 110/120.00, subd. 1) harassment (P.L. 240.25, subd. 1) and endangering the welfare of an incompetent person (P.L. 260.25). Each complaint is by the investigator and is identical in form. Each varies only as to the date and time of the incident, the nature of the incident and the name of the resident. For example the first paragraph in docket 7X035246 alleges that the investigator observed the defendant with intent to cause physical injury to complaining witness, did attempt to cause personal injury, in that the deft did punch complaining witness in the face with closed fist, causing her to suffer substantial pain. The second paragraph alleges that the defendant, with the intent to harass, annoy or alarm did subject complaining witness, to physical contact, in that the defendant punched the complaining witness and cursed at her. The third paragraph alleges that the defendant did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of complaining witness, who is unable to care for herself because of mental disease or defect in that defendant punched her in the face. Finally, the last paragraph, on information and belief, is that the complaining witness have been adjudged to be mentally incompetent. The complaint was signed by the investigator.

The defendants were arraigned on these complaints and subsequently, in the All Purpose Part, the People filed a corroborating affidavit by LC, the Director of Mental Retardation at the Bronx Developmental Center. In it Mr. LC states that he has read the accusatory instrument, that he has reviewed the medical records pertaining to the complaining witness and that the assertion, upon information and belief, of mental incompetence is true. Upon the filing of the affidavit the People asked that the complaints be deemed informations. The accident defendants opposed this on two grounds. First, they argued, the suffering of substantial pain as it relates to the attempted assault is subjective on the part of the victim and, accordingly, requires the victim’s (complaining witness’) supporting deposition. In short, it is a fact as to which the investigator cannot state on her own knowledge. Second, the defendants argued, the purported corroborating affidavit by the Director of Mental Retardation is itself a hearsay affidavit for, as it states, the complaining witness’ mental incompetence is based upon information and belief.

The defendants are not charged with assault; they are charged with attempted assault. This distinction is critical because it relieves the People of the burden of proving each element of the completed crime. Here the People need not prove that the defendant actually caused pain to the complaining witness but only that the defendant intended to cause substantial pain and engaged in conduct which tended to effect that result. To state the point analogistically, the People need only prove a swing, not a swing and a hit. In other words, to answer the question of whether a person has made an attempt to commit a crime requires focusing on the mind and actions of that person and not upon the result of the acts, People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808; People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094. And the actor’s state of mind can be inferred from the actions he took. Thus, the investigator’s complaint herein is sufficient to constitute an information as to the attempted assault. It should be noted in passing that while the factual part of the complaint alleges a completed assault in that the defendant hit the complaining witness causing her to suffer substantial pain that does not preclude the defendant’s being charged with attempted assault, People v. Williams, 120 Misc.2d 68, 465 N.Y.S.2d 648.

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Additionally, this court is disturbed by R.K.’s reference to the fact that he was essentially auditioning for the role of guardian when he was called to M.F.’s office to meet with the person and his family. That there may have been a certain amount of acting involved in that meeting is a great possibility and further firmly establishes to this court the fact that an independent guardian should be appointed for the person and not an individual he met through his personal injury attorney who very well might have a monetary stake in the outcome of the litigation.

Accordingly, this court hereby appoints D.L., Esq., with offices located at Grand Concourse, Bronx, New York 10451, as the guardian of the property of the person for a limited duration. D.L.’s powers are limited to assisting the person in the personal injury litigation and limited to the duration of the litigation. However, the guardianship can be extended beyond the duration of the personal injury litigation upon good cause shown.

These powers constitute the least restrictive form of intervention consistent with the person’s functional limitations.

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4.) The court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the cause of his medical problems were. In one report, a medical expert states that he is unsure if the person’s memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident. The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

5. The person’s income and assets at the present time, consist solely of Workers’ Compensation benefits in the amount of $ 1,600 per month.

Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator’s recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person’s nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney’s financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

The role of the guardian is to represent the person’s best interests, that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. Since R.K. was introduced to the person by his personal injury attorney, it is unclear whether or not R.K. would be able to be objective since the personal injury attorney has introduced him to potential wards in the past and will likely continue to do so in the future. The financial incentive to go along with the attorney’s recommendations thereby creating the likelihood of continuing this practice of generating lucrative referrals as guardian in the future cannot be discounted.

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A self-petition has been filed for the appointment of a guardian of the property of B.H., an alleged incapacitated person (hereinafter known as “the person”). This Court is obviously satisfied that the person was duly served with the order to show cause and petition and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Mental Hygiene Legal Service (MHLS) was appointed to serve as the court evaluator.

The hearing was held on December 15, 2009. At the hearing the person was present and testified and consented to the appointment of R.K., Esq., as his guardian. R.K. also testified at the hearing.

It is determined that the following findings of fact were established by clear and convincing proof upon the documentary evidence submitted and the testimony adduced:

1.) The person is 32 years of age. The person presently resides with his wife and two (2) children at 777 XXX Avenue, Apartment XX, Bronx, New York 10467.

2.) The person stated that he was involved in an accident on Hudson Street in New York County on April 12, 2000, while he was working and fell off a scaffold. He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments. As a result of his limitations, the person wishes to have a guardian appointed for his property. He nominated R.K., Esq., whom he met at his personal injury attorney’s office, as his guardian. His personal injury attorney is M.F., Esq. He further stated that he was voluntarily asking to have R.K. appointed as his guardian.

3.) R.K., Esq., stated that he was nominated by the person and his family to serve as the guardian after meeting with all of them at M.F.’s office. R.K. further stated that he had previously met with the person a few years ago at M.F.’s office when a guardianship proceeding was being contemplated. R.K. then met with the family more recently in order to see if they were comfortable with him and would be willing to nominate him as the guardian. R.K. referred to his meeting with the family as an audition to see if the family liked him. R.K. admitted that he has a professional relationship with M.F. and that M.F. has introduced him to other individuals in the past with a view toward R.K. being nominated their guardian. R.K. stated that the person and his family, including the person’s father, who is a major player in making decisions for the family, was comfortable with him and asked him to serve as the guardian. R.K. stated that he has served as a guardian in New York and he has knowledge of what is involved in the person’s personal injury action. When asked by the court evaluator if he thought it would be a conflict for him to serve as the guardian in light of how he came to meet the person, R.K. indicated that he would leave that up to the court.

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There can be no doubt that the threat was heinous in giving great offense (Webster’s International Dictionary, 2d ed.) and was gravely reprehensible (American College Dictionary). Defendant threatened to kill Dr. ERF who immediately notified the law enforcement authorities. There is no doubt that we are indeed to be concerned with the words used by defendant in determining whether a threat was heinous. But more importantly, we are concerned with the effect of the threat upon the state of mind of the victim. To what extent, then, did the defendant’s words instill a fear in the victim?

Dr. ERF testified that when the threat to kill was made to him, he became “very frightened”. There is no reasonable view of the evidence which in any way would support the conclusion that complainant’s fear of being killed was lessened so as to dilute the heinous quality of defendant’s threat, nor is there any reasonable view of the evidence to show that defendant did not intend that consequence (People v. Johnson, 39 N.Y.2d 364, 384 N.Y.S.2d 108, 348 N.E.2d 564; People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551; see also, People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410).

We should not consider defendant’s further claim that submission of the crime of attempted coercion in the second degree was warranted on the theory that the evidence showed a second threat, to expose Dr. ERF’s alleged complicity in a check-cashing fraud. This alleged threat is nowhere charged in the indictment. Apparently, the District Attorney chose not to indict defendant for the second threat, which he might have done under the statute defining coercion in the second degree (Penal Law, § 135.60(4)(5)).

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