Plaintiff moves for an order granting leave to file a late notice of claim.

This action is brought to recover for the alleged personal injuries, conscious pain and suffering and wrongful death of Egypt P.

Egypt P., age three, died November 21, 2004, the victim of child abuse found to have been inflicted over a period extending from March, 2004 until her death by James Smith, the live-in boyfriend of Egypt's mother, Tanya R. Both Smith and Tanya R. were convicted of felonies and sentenced to prison, Smith for Egypt's murder, and Tanya R. for criminally negligent homicide for her role in failing to protect Egypt. This lawsuit seeks to impose liability upon each of the named defendants for, among other things, negligently failing to investigate and protect Egypt from this harm.

Egypt left surviving two infant siblings, A.A. and B.B. who, because of their mothers' culpable conduct in causing Egypt's death, are Egypt's only distributees. Egypt's mother by her felony conviction is disqualified both from acting as a fiduciary (SCPA 707) and from sharing in Egypt's estate (see, In re Nipcon's Estate, 102 Misc 2d 619). Egypt's natural father, Carnation P., is also a convicted felon, who abandoned Egypt and never paid child support on her behalf. He is disqualified from acting as a fiduciary by reason of his felony conviction (SCPA 707) and by his abandonment of Egypt from sharing in her estate as either as a distributee (EPTL 4-1.4[a]; Ball v Harris, 24 AD3d 1062) or as a recipient of any wrongful death proceeds (In re Estate of Arroyo, [*2]273 AD2d 820). Plaintiff Heslin, the family court law guardian for A.A. and B.B., was appointed administrator of Egypt's estate on October 31, 2006. She served a Notice of Claim pursuant to General Municipal Law 50-e upon defendants on November 12, 2006. The action was commenced on November 21, 2006.

The action presents two claims. One, for wrongful death, the other, for conscious pain and suffering. The motion before the Court addresses the timeliness of the notice of claim with respect to each such claim, the moving papers in their prayer for relief requesting that the Court "deem Plaintiff's Notice of Claim timely in all respects and/or grant leave to file a late notice of claim." Defendant Alegre has indicated she does not oppose the motion. Defendant Early Childhood Learning Center of Greene County has not appeared on the motion. Defendants Greene County, Greene County Department of Mental Health, Greene County Department of Social Services and Greene County Child Protective Services oppose the motion, however they have not cross-moved for dismissal of the action.

A notice of claim in a wrongful death action against a municipal defendant must be filed within 90 days from the appointment of a representative of the decedent's estate (GML 50-e[1][a]), and the action must be commenced within two years of the happening of the death (GML 50-i[1]). Plaintiff was appointed administrator on October 31, 2006 and her notice of claim was served 16 days later on November 12. The action, commenced on November 21, 2006, was filed two years, to the day, after Egypt's death. Both events were timely, the moving papers so assert, and defendant's papers do not directly contest that assertion. There is no issue on the motion with respect to this claim upon which the Court must rule.

With respect to the claim for conscious pain and suffering, statute in the first instance requires that "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action . . . against a public corporation, . . . the notice of claim shall . . . be served . . . within ninety days after the claim arises" (GML 50-e[1][a]). A claim for any of Egypt's personal injuries including pain and suffering accrued when those injuries were inflicted, as early as March 2004, and as late as November 21, 2004. Statute on its face therefore calls for a notice of claim for personal injuries to have been filed, at the latest, by February 19, 2005. The Notice of Claim, filed November 12, 2006, was late. The motion thus presents, as issues, whether the Court may, and if it may, whether it should, extend the time for filing notice of claim as to personal injuries.

Statute provides that upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in GML 50-e[1][a], however any such extension "shall not exceed the time limited for the commencement of an action by the claimant against the public corporation" (GML 50-e[5]). Before determining whether to exercise its discretion, therefore, the Court must discern the limitations period applicable to the claim for Egypt's personal injuries.

The law provides that no action shall be prosecuted or maintained against a county for personal injury alleged to have been sustained by reason of the negligence or wrongful act of such county unless (inter alia) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based (except that wrongful death actions shall be commenced within two years after the happening of the death) (GML 50-i[1]).

Thus, the statute of limitations applicable to any of Egypt's causes of action for pain and [*3]suffering is one year and ninety days.^[FN1] Were she an adult, her earliest such claim would be barred if not sued on by May 30, 2005 (1 year 90 days after March 1, 2004), and her last such claim would be barred if not sued on by February 19, 2006 (1 year 90 days after her death on November 21, 2004).

However, because Egypt was at all times an infant, a statutory toll applies.^[FN2] Under that statute, if a person entitled to commence an action is under a disability because of infancy at the time the cause of action accrues, and the time otherwise limited to bring the action is less than three years, the time is extended by the period of disability (CPLR 208). Thus, the limitations period on any of Egypt's personal injury claims did not begin to run, so long as she remained an infant. But, because she ceased to be an "infant" upon her death, the disability of infancy would have been removed on November 21, 2004 (see, Barnes v County of Onondaga, 103 AD2d 624; Gibbons v City of Troy, 91 AD2d 707, 708) and, absent any other tolling provision the statute would have began to run on all of such claims on that date. Absent any other tolling provision, the last day to bring an action for Egypt's personal injury claims would have been February 19, 2006.^[FN3] Any application to extend the time for filing notice of claim would have had to have been made before this date as well ^[FN4], and, in any event, under the facts presented absent any other tolling provision the Court would be without authority under GML 50-e to exercise its discretion to extend past February 19, 2006 the time within which to file notice of claim for Egypt's personal injuries.

Is there another applicable tolling provision?

The parties have briefed to the Court their respective interpretations as to the proper [*4]application to this case of the cases Baez v New York City Health & Hosps. Corp. (80 NY2d 571) and Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687). For reasons now set forth, these cases are helpful, but not strictly necessary to plaintiff's position.

As noted above, by statute, if a person entitled to commence an action is under a disability because of infancy at the time the cause of action accrues, and the time otherwise limited to bring the action is less than three years, the time is extended by the period of disability (CPLR 208).

Egypt was not the only person "entitled to commence an action" and under the disability of infancy.

Egypt's sisters, N.S. and N.R., are Egypt's closest relatives who are not disqualified from serving as her fiduciary or from sharing in her estate. Were they adults, they and they alone would be the persons entitled to seek appointment as Egypt's administrator, in order to bring an action for her conscious pain and suffering on behalf of her estate (SCPA 1001[1][e]). They are prevented from doing so only by their infancy. They were infants, both when Egypt's cause of action accrued, and when it became potentially theirs to prosecute by reason of Egypt's death, and, under the Court's analysis above, at the time of Egypt's death there remained time "otherwise limited" within which to bring the action, of one year and ninety days, a period less than three years. Under the plain wording of CPLR 208, then, the time within which Nyasia and Neisha may bring their action should be and is extended by the period of their infancy. Consequently, the statute of limitations on the claim for Egypt's pain and suffering did not run out on February 19, 2006, indeed the one year and ninety day period never began to run, prior to plaintiff's appointment.

The cases cited by the parties, while not strictly necessary to the above argument, only add to its force.

Both Hernandez and Baez involved, not survival actions, but wrongful death actions, wherein the "person entitled to commence an action" is the decedent's "personal representative" (EPTL 5-4.1). Nonetheless, they illuminate and share elements with this case.

As since explained by the Court of Appeals, "Hernandez concerned an unusual situation' where there was no personal representative of the decedent's estate and the infant sole distributee was not eligible to receive letters of administration pursuant to SCPA 707 (1) (a). No one could commence a wrongful death action until a guardian was appointed for the infant sole distributee. Thus, the infant's disability was directly linked to identifying a prospective plaintiff (an administrator) and only the appointment of a guardian or the infant's eighteenth birthday could resolve the dilemma. In that rare situation, CPLR 208 tolls the Statute of Limitations for the wrongful death action until the earliest moment there is a personal representative or a potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first' (id., at 693)." (Henry v City of New York, 94 NY2d 275, 283.)

In contrast, "[i]n Baez, decedent's will named plaintiff the executrix. Thus, plaintiff could have sought appointment as the personal representative for the estate and commenced the wrongful death action; the infancy toll was inapplicable because the infant distributees were not entitled to commence the action.'" (Henry v City of New York, supra, at 283.)

Here, upon Egypt's death there was no personal representative of her estate entitled to commence her action for conscious pain and suffering, her only distributees were prevented from [*5]seeking appointment as her representative only by their infancy, and no one could commence that action for pain and suffering until someone was appointed fiduciary of Egypt's estate. That plaintiff here was able to be appointed administrator without first being appointed guardian of the surviving sisters does not lessen the importance of the fact that the disability of all three infants was directly linked to identifying a prospective plaintiff for this lawsuit. In the Court's view it seems that "failing to extend the tolling provisions under such circumstances would have an unnecessarily harsh result'" (Hernandez v New York City Health & Hosps. Corp., supra, at 693), and further that the facts of this case "fall squarely within the parameters contemplated by the Court of Appeals when it carved out this very limited exception" (Weed v St. Joseph's Hospital, 245 AD2d 713 [3rd Dept 1997]).

For all of the foregoing reasons, the Court holds that the statute of limitations with respect to the cause of action for Egypt P.'s conscious pain and suffering had not expired as of November 16, 2006, when the plaintiff's late Notice of Claim was served. The Court accordingly may proceed to consider whether, in the exercise of its discretion, the time within which to serve a late notice of claim should be extended to that date.

In determining whether to grant the extension, GML 50-e[5] charges the Court to consider various factor which bear upon its discretion. As applicable to this case these factors include, in particular, whether the defendants acquired actual knowledge of the essential facts constituting the claim within the time specified for filing timely notice of claim or a reasonable time thereafter, whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim, and whether the delay in serving the notice of claim substantially prejudiced defendants in maintaining a defense on the merits.

In this case, the defendant County of Greene including its various subdivisions and employees had actual knowledge of the events which invoked their duty to report, investigate and prevent abuse, as is reflected by the testimony of defendants' employees at the criminal trial of James Smith, annexed as an exhibit to the plaintiff's papers. Defendants through their employees made admissions that they were aware of several allegations of abuse, that they were involved in an investigation, that they verbally ordered James Smith to absent himself from the home of Egypt P., that there is no evidence that this order was enforced, and that they continued to pay James Smith to furnish childcare to Egypt P. This actual knowledge coupled with the further fact that defendants maintain records documenting the abuse of Egypt P. negates any claim that defendants could claim substantial prejudice to their defense from an extension. And, certainly, the circumstances surrounding the abuse and death of this vulnerable three year old victim, who was at once an infant, a person physically incapacitated by the abuse to which she was subjected, and a person who died before the time limited for service of her notice of claim, are all clear factors favoring exercise of the Court's discretion.

Plaintiff's motion is granted, in that the Court in the exercise of its discretion pursuant to GML 50-e[5] hereby extends the time for service of plaintiff's Notice of Claim to the date same was actually filed, namely November 16, 2006.

This is the Decision and Order of the Court. All papers are returned to counsel for plaintiff, who is directed to enter this Decision and Order without notice, and to serve other counsel with a copy of the Decision and Order, with notice of entry.

Dated :March 8, 2007

Catskill, New York

_______________________________

[*6] Hon. Daniel K. Lalor