GIANNICOS v. New York Eye & Ear Infirmary, et al., Defendants. (2007)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about February 1, 2006, which, in an action for medical malpractice, granted plaintiff guardian's motions to confirm the Special Referee's report finding that the incapacitated person was entitled to the insanity toll of CPLR 208, and for leave to serve a late notice of claim, unanimously affirmed, without costs.

 The record contains substantial support for the Special Referee's finding (see RC 27th Ave. Realty Corp. v. New York City Hous. Auth., 305 A.D.2d 135, 757 N.Y.S.2d 841 [2003] ) that the incapacitated person is “unable to protect [his] legal rights because of an over-all inability to function in society” as a result of suffering a stroke, and was therefore entitled to the insanity toll of CPLR 208 (McCarthy v. Volkswagen of Am., 55 N.Y.2d 543, 548, 450 N.Y.S.2d 457, 435 N.E.2d 1072 [1982] ).   The toll did not terminate on the appointment of a guardian (see Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580, 724 N.E.2d 372 [1999];  Costello v. North Shore Univ. Hosp. Ctr. for Extended Care & Rehabilitation, 273 A.D.2d 190, 709 N.Y.S.2d 108 [2000] ).   Leave to serve a late notice of claim was properly granted, notwithstanding plaintiff's failure to explain her delay, on a record establishing that defendants were not prejudiced by the delay (see Matter of Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [2003];   Weiss v. City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1997] ).   We have considered defendants' other arguments and find them unavailing.

The Decision and Order of this Court entered herein on February 13, 2007 is hereby recalled and vacated (see M-1424 decided simultaneously herewith).