Donovan v. County of Niagara

100 A.D.2d 740, 473 N.Y.S.2d 635, 1984 N.Y. App. Div. LEXIS 17744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1984
• Status: Published

Opinion

Order unanimously reversed, without costs, and defendant county’s motion granted. Memorandum: Special Term improperly denied defendant’s motion to dismiss the cause of action for conscious pain and suffering and granted plaintiff’s cross motion for leave to file a notice of claim nunc pro tunc. Plaintiff’s decedent, while a prisoner in the custody of the county, was hospitalized on August 22, 1979. From August 22, 1979 until his death on December 25,1979, decedent was continuously in a coma. The notice of claim was filed on March 25,1980 but no application for leave to file a late notice of claim was made until November 18,1982. Giving plaintiff the benefit of tolling of the Statute of Limitations (CPLR 208) during the entire period that decedent was in a coma, the application was not made until approximately 35 months after decedent’s disability ceased. Because the application was made after the expiration of the maximum period permitted by subdivision 5 of section 50-e and section 50-i of the General Municipal Law (one year and 90 days), plaintiff’s motion should have been denied and the cause of action for conscious pain and suffering dismissed (see Pierson v City of New York, 56 NY2d 950; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256). (Appeal from order of Supreme Court, Niagara County, Johnson, J. — summary judgment.) Present — Dillon, P. J., Hancock, Jr., Denman, Green and Moule, JJ.