SMITH v. LONG BEACH CITY SCHOOL DISTRICT

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

Kris SMITH, etc., et al., Appellants, v. LONG BEACH CITY SCHOOL DISTRICT, etc., et al., Respondents.

Decided: October 30, 2000

THOMAS R. SULLIVAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. Elkind, Flynn & Maurer, P.C., Garden City, N.Y. (Michael Flynn of counsel), for appellants. Morenus, Cardoza & Conway, Westbury, N.Y. (Keith J. Conway and Eileen M. Baumgartner of counsel), for respondents.

In an action, inter alia, to recover damages for negligent infliction of emotional distress, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Dunne, J.), entered August 20, 1999, which granted the defendants' motion to dismiss the complaint as barred by the Statute of Limitations.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion which were to dismiss the first through fifth causes of action, and substituting therefor provisions denying those branches of the motion;  as so modified, the order is affirmed, with costs to the plaintiffs.

 The defendants concede that in light of the Court of Appeals decision in Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580, 724 N.E.2d 372, the infant plaintiff's first through fifth causes of action were not time-barred and must be reinstated.   However, those branches of the defendants' motion which were to dismiss the causes of action asserted on behalf of the infant plaintiff's parents were properly granted.   The infancy toll is personal to the infant and does not extend to the parents' derivative claims (see, Dong T. Chen v. New York City Health & Hosps. Corp., 270 A.D.2d 445, 705 N.Y.S.2d 66;  Blackburn v. Three Vil. Cent. School Dist., 270 A.D.2d 298, 705 N.Y.S.2d 53;  Myrick v. County of Suffolk, 139 A.D.2d 633, 527 N.Y.S.2d 273).   Any delay in compliance with General Municipal Law § 50 h did not toll the Statute of Limitations (see, Mignott v. New York City Health & Hosps. Corp., 250 A.D.2d 165, 680 N.Y.S.2d 565).

We agree with the defendants that the infant plaintiff's twelfth cause of action should be dismissed on the alternative ground that it failed to state a cause of action (see, Dubroff v. Evergreen Bank, 265 A.D.2d 644, 696 N.Y.S.2d 560).

MEMORANDUM BY THE COURT.

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