A1428   Kaufman (MS)   Same as S 7224  VELELLA  
Civil Practice Law and Rules
TITLE....Restores the former meaning of the law in defining infancy for the purpose of tolling a statute of limitations under Civil Practice Law and Rules 208
 

KAUFMAN, SIDIKMAN, SEDDIO; M-S: Aubry, Boyland, Clark, Cook, Glick, Gottfried, Jacobs, John, Lafayette, Mayersohn, Weinstein, Wright
Amd S208, CPLR
Restores the former meaning of the law in defining "infancy" for the purpose of tolling a statute of limitations under CPLR 208, by defining infancy as "under the age of eighteen years", rather than as a disability "because of", or "due to", infancy; provides that this bill is intended to reverse the interpretation made by the Appellate Division, Second Department, in the case of Henry v. City of New York (New York Law Journal, August 7, 1998).

 
                STATE OF NEW YORK
       ________________________________________________________________________
 
                                         1428
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                   January 16, 2001
                                      ___________
 
       Introduced  by  M. of A. KAUFMAN, SIDIKMAN, SEDDIO -- Multi-Sponsored by
         -- M. of A. AUBRY, BOYLAND, CLARK,  COOK,  GLICK,  GOTTFRIED,  JACOBS,
         JOHN,  LAFAYETTE,  MAYERSOHN,  WRIGHT -- read once and referred to the
         Committee on Codes
 
       AN ACT to amend the civil practice law and rules,  in  relation  to  the
         infancy toll of a statute of limitations
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Section 208 of the civil practice law and rules, as amended
    2  by chapter 485 of the laws of 1986, is amended to read as follows:
    3    § 208. Infancy, insanity. If a person entitled to commence  an  action
    4  is  [under a disability because of infancy or insanity], at the time the
    5  cause of action accrues, under the age of eighteen years or insane,  and
    6  the  time  otherwise limited for commencing the action is three years or
    7  more and expires no later than three years after the disability  ceases,
    8  or  the  person  under  the  disability  dies, the time within which the
    9  action must be commenced shall be extended  to  three  years  after  the
   10  disability  ceases  or  the  person under the disability dies, whichever
   11  event first occurs; if the time otherwise limited  is  less  than  three
   12  years,  the time shall be extended by the period of disability. The time
   13  within which the action must be commenced shall not be extended by  this
   14  provision beyond ten years after the cause of action accrues, except, in
   15  any  action  other  than  for  medical, dental or podiatric malpractice,
   16  where the person was under [a disability due  to  infancy]  the  age  of
   17  eighteen  years.  This section shall not apply to an action to recover a
   18  penalty or forfeiture, or against a sheriff  or  other  officer  for  an
   19  escape.
   20    §  2.  This  act  shall take effect immediately and shall apply to all
   21  actions pending or commenced on or after its effective date.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01710-01-1

 
BILL NUMBER: A1428
 
SPONSOR: Kaufman (MS)

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the infancy toll of a statute of limitations
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
Restores the former meaning of the law in defining "infancy" for the
purpose of tolling a statute of limitations under CPLR 208.
 
 
SUMMARY OF SPECIFIC PROVISIONS:
 
Amends section 208 of the civil practice law and rules, as amended by
chapter 485 of the laws of 1986.
 
 
JUSTIFICATION:
 
CPLR 208 provides that if a person entitled to commence an action is
under disability because of infancy at the time the cause of action
accrues, and the time otherwise limited for commencing and the action is
less than three years, the time shall be extended by the period of disa-
bility.
 
However, as recently interpreted by the Appellate Division, Second
Department, the current statute may not provide protection to infants
even in the case where the infant is harmed.  The case of Henry v. City
of New York markedly depicts this injustice. In this case, a mother
filed a timely notice of claim on behalf of each of her infant plain-
tiffs who allegedly ingested lead paint while living in a City owned
apartment due to the negligence of ownership maintenance; however,
because she failed to commence the action within one year and 90 days
after the happening of the event upon which the claim was based, the
claim was dismissed by the court.  The court held that the infants in
this case no longer suffered from any disabilities because of infancy
because their interests were protected by a legal guardian and counsel,
and that therefore, the infancy toll of CPLR was not applicable.
 
With this ruling, the Second Department essentially abolished protection
always afforded minors under CPLR 208. The general assumption about the
CPLR 208 statute has always been that infants are themselves disabled
until they reach a mature state where they are able to fend for them-
selves.  As interpreted by the Second Department, this statute in and of
itself detracts the rights of untold numbers of infants and should be
revamped in order to protect these innocent victims.
 
 
PRIOR LEGISLATIVE HISTORY: 1999-2000: A.7118 - Codes
 
 
FISCAL IMPLICATIONS: Undetermined
 
 
EFFECTIVE DATE: This act shall take effect immediately and shall apply
to all actions pending or commenced on or after its effective date.