O'Donnell v. Troy Housing Authority

271 A.D.2d 731, 706 N.Y.S.2d 736, 2000 N.Y. App. Div. LEXIS 3895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2000
• Status: Published

Opinion

Mugglin, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered April 9, 1999 in Rensselaer County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff appeals from Supreme Court’s grant of summary judgment dismissing the complaint based on plaintiffs failure to commence the action within the applicable period of limitations as set forth in General Municipal Law § 50-i. During September 1996, plaintiff’s infant son sustained personal injuries as a result of an accident on defendant’s property. A notice of claim was served in November 1996 and plaintiff commenced this action on October 16, 1998. Relying upon Henry v City of New York (244 AD2d 93, revd 94 NY2d 275) and the fact that the infant had legal representation by November 14, 1996, Supreme Court held that the tolling provisions of CPLR 208 were not applicable and that the action was barred by the Statute of Limitations.

Subsequent to Supreme Court’s decision, the Court of Appeals reversed the case upon which Supreme Court relied in granting defendant’s motion (see, Henry v City of New York, 94 NY2d 275). As a result, plaintiff now asserts, and defendant concedes, that summary judgment was erroneously granted in light of this Court of Appeals decision. Accordingly, the tolling provisions of CPLR 208 are applicable and the action on behalf of the infant is timely.

Cardona, P. J., Crew III, Carpinello and Graffeo, JJ., concur. Ordered that the order is reversed, on the law, without costs, and motion denied.