ROSADO OLIVENCIA v. The City of New York, Defendant-Appellant. (1998)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 1, 1997, which denied defendant City of New York's motion to dismiss the complaint as time-barred, unanimously modified, on the law, to the extent of dismissing the tort claims against the City asserted by plaintiff Minerva Olivencia individually, and otherwise affirmed, without costs.

 The infant plaintiff's guardian, represented by counsel, filed a timely notice of claim but then failed to commence the action against the City within the applicable 1 year and 90 day Statute of Limitations period (see, General Municipal Law §§ 50-e, 50-i).   The infant plaintiff's action, however, was not consequently time-barred since the initial prosecution of his claim by his legal representatives did not preclude him from invoking the CPLR 208 disability toll to prevent the running of the statutory period (see e.g. Russo v. City of New York, 258 N.Y. 344, 347-348, 179 N.E. 762).   An infant should not be penalized for the failures or neglect of his guardian or attorney (Murphy v. Village of Fort Edward, 213 N.Y. 397, 403, 107 N.E. 716;  Cruz v. City of New York, 200 A.D.2d 407, 408, 606 N.Y.S.2d 211).   While the infancy disability toll has been deemed ineffective in wrongful death cases once a personal representative of the decedent's estate has been appointed (Hernandez v. New York City Health and Hospitals Corp., 78 N.Y.2d 687, 578 N.Y.S.2d 510, 585 N.E.2d 822), this is not a wrongful death action where the cause of action is at least technically that of the estate;  rather, the causes here at issue are in all respects those of the infant plaintiff who, unlike a decedent's estate, is entitled to claim the protection of the infancy disability toll.

 Although the claims of the infant plaintiff are not time-barred, upon a search of the record, we find that the tort claims individually asserted by plaintiff Minerva Olivencia against the City are so barred.   The infant plaintiff's mother cannot claim the protection of the infancy disability toll.

MEMORANDUM DECISION.