Meletiche v. City of New York

260 A.D.2d 385, 686 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 3556

Opinion

—In a purported proceeding for leave to file a late summons and complaint, the City of New York appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated November 25, 1997, which, upon determining that the Statute of Limitations pursuant to General Municipal Law § 50-i had not run, denied the application as unnecessary. Justice Sullivan has been substituted for former Justice, now Judge, Rosenblatt, and Justice Santucci has been substituted for former Associate Justice Copertino (see, 22 NYCRR 670.1 [c]).

Ordered that the order is reversed, on the law, without costs or disbursements, and the proceeding is dismissed.

This proceeding, which sought leave to file a late summons and complaint on the City of New York based on a claimed toll for infancy, must be dismissed inasmuch as no cause of action exists for leave to file a late summons and complaint. Even if this defect were not present, we would nevertheless conclude that no toll would apply since the injured infant was represented by her mother as guardian, and by counsel, both of whom were in a position to adequately protect her interests (see, CPLR 208; Henry v City of New York, 244 AD2d 93; see generally, Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687). Ritter, J. P., Santucci, Thompson and Sullivan, JJ., concur.