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.https://www.newyorkinjurylawyer247blog.com/mt-static/images/formatting-icons/link.gif
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.
In Hernandez, the decedent died intestate in April 1987 in a facility operated by defendant New York City Health and Hospitals Corporation, leaving her infant son as her sole distributee. Letters of guardianship were issued to the infant’s grandmother in December 1987 and an administrator of the estate was appointed with the guardian’s consent later that month. In February 1988, the administrator was granted leave to file a late notice of claim. But she did not commence a wrongful death action until December 1988, more than one year and 90 days after decedent’s death. The defendant moved to dismiss the wrongful death action as time-barred. On appeal, a majority of this Court concluded that the action was timely by virtue of the CPLR 208 infancy toll, holding that where the only distributee is an infant, the distributee’s infancy serves to toll the limitations period until the earliest moment there is a personal representative or potential personal representative who can bring the action, which the Court stated would occur upon the appointment of a guardian or majority of the distributee, whichever occurs first.