Opinion
July 5, 1966
In an action by an infant to recover damages for personal injuries and by her father to recover for medical expense and loss of services, the infant plaintiff appeals (a) from an order of the Supreme Court, Suffolk County, entered February 25, 1964, which, on defendant's motion (CPLR 3211, subd. [a], par. 5), dismissed the amended complaint on the ground that the action was barred by the Statute of Limitations; and (b) from the judgment of said court entered March 23, 1964 pursuant to said order. Order and judgment reversed, without costs, and motion denied. The time to answer is extended until 20 days after entry of the order hereon. In this action against a municipal corporation, a notice of claim was timely filed on behalf of the infant, who sustained injuries because of an accident on August 2, 1957. An action commenced in May 1958 was dismissed on September 9, 1959 for failure to prosecute. On September 20, 1962 the infant plaintiff instituted a second action to recover for the same injuries. Pursuant to court order, an amended complaint was served on January 2, 1964. By the order appealed from, the amended complaint was dismissed on the ground that the action was barred by section 50-i Gen. Mun. of the General Municipal Law, which requires an action to be commenced within one year and 90 days after the happening of the accident. In our opinion, the time of disability by reason of infancy is not a part of the time limited by subdivisions 1 and 2 of section 50-i Gen. Mun. of the General Municipal Law for the commencement of the action ( La Fave v. Town of Franklin, 20 A.D.2d 738). Nor does the fact that the first action commenced by the infant was dismissed for failure to prosecute make any difference. CPLR 205, which permits a new action in certain circumstances, applies only to cases other than infancy. Here, because of the disability of infancy, the bar of the statute never became effective ( Russo v. City of New York, 258 N.Y. 344, 349). Beldock, P.J., Ughetta, Rabin and Benjamin, JJ., concur; Hill, J., dissents and votes to affirm the order and judgment appealed from.