BOOKSTEIN v. REPUBLIC INSURANCE COMPANY (1999)

Supreme Court, Appellate Division, First Department, New York.

Herbert Z. BOOKSTEIN, as Executor of Shirley Bookstein, Deceased, Plaintiff-Respondent, v. REPUBLIC INSURANCE COMPANY, Defendant-Appellant.

Decided: November 23, 1999

ELLERIN, P.J., ROSENBERGER, TOM, ANDRIAS and BUCKLEY, JJ.

Joel J. Spector, for Plaintiff-Respondent. Doreen J. Spagnuolo, for Defendant-Appellant.

Order, Supreme Court, New York County (Barry Cozier, J.), entered November 6, 1998 which granted plaintiff's motion for reargument and, upon reargument, denied defendant's previously granted motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The motion court properly held that the tolling provision set forth in CPLR 208 applies in this case, and thus, the two-year suit limitation provision in the insurance policy was tolled until the insured's death on August 29, 1995. The mere execution of a power of attorney by the disabled insured to her son approximately five years before she entered a nursing home did not function to deprive her of the protection to which she was entitled as a disabled person pursuant to the tolling provision (see, Stackrow v. New York Prop. Ins. Underwriter's Assn., 115 A.D.2d 883, 496 N.Y.S.2d 794). We have considered defendant's remaining contentions and find them unavailing.

MEMORANDUM DECISION.

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