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.
To Be Cont….