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Rosado v. Langsam Property Service Corp.

Alexander Rosado, an Infant, by His Mother and Natural Guardian, Minerva Olivencia v. Langsam Property Service Corp., and City of New York

Rosado v. Langsam Prop. Serv. Corp., 251 A.D.2d 258 (1998)
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Court
Appellate Division of the Supreme Court of the State of New York · State Appellate Courts
Decided
June 30, 1998
Citations
251 A.D.2d 258675 N.Y.S.2d 531998 N.Y. App. Div. LEXIS 7791
Cited by 9 1 descriptions by later courts

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

—Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 1, 1997, which denied defendant City of New York’s motion to dismiss the complaint as time-barred, unanimously modified, on the law, to the extent of dismissing the tort claims against the City asserted by plaintiff Minerva Olivencia individually, and otherwise affirmed, without costs.

The infant plaintiffs guardian, represented by counsel, filed a timely notice of claim but then failed to commence the action against the City within the applicable 1 year and 90 day Statute of Limitations period (see, General Municipal Law §§ 50-e, 50-i). The infant plaintiffs action, however, was not consequently time-barred since the initial prosecution of his claim by his legal representatives did not preclude him from invoking the CPLR 208 disability toll to prevent the running of the statutory period (see, e.g., Russo v City of New York, 258 NY 344, 347-348 ). An infant should not be penalized for the failures or neglect of his guardian or attorney (Murphy v Village of Fort *259 Edward, 213 NY 397, 403 ; Cruz v City of New York, 200 AD2d 407, 408 ). While the infancy disability toll has been deemed ineffective in wrongful death cases once a personal representative of the decedent’s estate has been appointed (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687 ), this is not a wrongful death action where the cause of action is at least technically that of the estate; rather, the causes here at issue are in all respects those of the infant plaintiff who, unlike a decedent’s estate, is entitled to claim the protection of the infancy disability toll.

Although the claims of the infant plaintiff are not time-barred, upon a search of the record, we find that the tort claims individually asserted by plaintiff Minerva Olivencia against the City are so barred. The infant plaintiff’s mother cannot claim the protection of the infancy disability toll. Concur— Milonas, J. P., Rosenberger, Nardelli, Wallach and Rubin, JJ.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

Cited by 9 cases

View all citing references →
1998: 11999: 62000: 219982026peak 1999 · 6

Relies on it most ⓘ

  1. Strignano v. Jamaica Hospital181 Misc. 2d 155 (N.Y. Sup. Ct. 1999)
  2. Valencia ex rel. Franco v. Lee55 F. Supp. 2d 122 (E.D.N.Y. 1999)
  3. Henry v. City of New York724 N.E.2d 372 (N.Y. 1999)
  4. Niles v. Nelson72 F. Supp. 2d 13 (N.D.N.Y. 1999)
  5. Valencia ex rel. Franco v. Lee123 F. Supp. 2d 666 (E.D.N.Y. 2000)
  6. Boles v. Sheehan Memorial Hospital178 Misc. 2d 864 (N.Y. Sup. Ct. 1998)

Most recent

  1. Valencia ex rel. Franco v. Lee123 F. Supp. 2d 666 (E.D.N.Y. 2000)
  2. Quinones v. NYRAC277 A.D.2d 110 (2000)
  3. Henry v. City of New York724 N.E.2d 372 (N.Y. 1999)
  4. Sutherland v. Milstein266 A.D.2d 33 (1999)
  5. Niles v. Nelson72 F. Supp. 2d 13 (N.D.N.Y. 1999)
  6. Valencia ex rel. Franco v. Lee55 F. Supp. 2d 122 (E.D.N.Y. 1999)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Murphy v. Vill. of Fort Edward, 107 N.E. 716 (N.Y. 1915) 84
Russo v. City of N.Y., 179 N.E. 762 (N.Y. 1932) 74
Hernandez v. N.Y. City Health & Hospitals Corp., 585 N.E.2d 822 (N.Y. 1991) 61
Cruz v. City of N.Y., 200 A.D.2d 407 (1994) 5

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