Opinion
Argued December 17, 1999
March 13, 2000
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated January 25, 1999, which granted the defendant's motion for leave to further amend its answer to assert the affirmative defense of the Statute of Limitations against the infant plaintiff and to dismiss the complaint as time-barred.
Migliore Infranco, P.C., Commack, N.Y. (Steven L. Krantz of counsel), for appellants.
Devitt, Spellman, Barrett, Callahan, Leyden Kenney, LLP, Smithtown, N.Y. (Laure C. Nolan of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by (1) deleting the first decretal paragraph thereof and substituting therefor a provision denying that branch of the defendant's motion which was to further amend its answer to include the affirmative defense of the Statute of Limitations against the infant plaintiff, and (2) deleting from the second decretal paragraph thereof the word "granted" and substituting therefor the phrase "denied as to the first cause of action in the complaint, and is otherwise granted"; as so modified, the order is affirmed, without costs or disbursements, and the first cause of action is reinstated.
The infant plaintiff Scott Blackburn was allegedly injured when he fell from a swing at an elementary school playground on November 18, 1996. His mother, the plaintiff Lauren Blackburn, timely served a notice of claim on the defendant school district pursuant to General Municipal Law § 50-e Gen. Mun.. This action was commenced in February 1998, more than one year and 90 days after the accident occurred (see, General Municipal Law § 50-i Gen. Mun.). The defendant asserted a Statute of Limitations defense as to Lauren Blackburn's derivative cause of action. Subsequently, the defendant sought leave to amend its answer to also include a Statute of Limitations defense as to the infant plaintiff's cause of action and to dismiss the entire complaint as time-barred under General Municipal Law § 50-i Gen. Mun..
The toll for infancy pursuant to CPLR 208 N.Y.CPLR applies to the Statute of Limitations set forth in General Municipal Law § 50-i Gen. Mun., even though a parent or guardian has complied with General Municipal Law § 50-e Gen. Mun. by timely serving a notice of claim (see, Henry v. City of New York, N.Y.2d [Dec. 20, 1999]). Since Scott Blackburn was under the age of 18 when his cause of action accrued, it is not time-barred. However, since the infancy toll does not apply to a parent's derivative claim, Lauren Blackburn's cause of action was properly dismissed (see, Ann Mary J. v. City of New York Health Hosps. Corp., 204 A.D.2d 690;Cruz v. City of New York, 200 A.D.2d 407). Accordingly, the defendant's motion is denied insofar as it sought dismissal of Scott Blackburn's cause of action, and the first cause of action in the complaint is reinstated.
O'BRIEN, J.P., KRAUSMAN, FLORIO, and McGINITY, JJ., concur.