Claims of Infants Are Not Time-Barred As Statute of Limitations Is Tolled During Period of Infancy

General Municipal Law 50-c(1)(a) provides that a notice of claim must be filed with a municipality within ninety days of the date on which the claim arose. If the notice of claim is not filed within that 90 day time period, a claimant must make an application to the Court, within one year and 90 days from the time the cause of action accrued, for permission to file a late notice or claim. However, when the claimant is an infant, this one year and 90 day Statute of Limitations is tolled during the period of infancy ( Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 259, 262-263, 434 N.Y.S.2d 138, 414 N.E.2d 639; see, General Municipal Law 50-e (5); CPLR 208). "The decision to grant or deny [a late notice of claim] is still purely a discretionary one, and the courts remain free to deny an application for an extension in the interests of fairness to the potentially liable public corporation. The incorporation of the toll into the period of limitations specified in [General Municipal Law] 50-e (subd. 5) merely confers upon the courts the authority to entertain the otherwise untimely applications of disabled claimants; it does not, however, dictate that such applications automatically be granted" ( Cohen v. Pearl Riv. Union Free School Dist., supra at 265-266; see also Knightner v. City of New York, 269 A.D.2d 397, 702 N.Y.S.2d 643). Nineteen years after it made the foregoing pronouncement in Cohen v. Pearl River Union Free School District, the Court of Appeals in Henry v. City of New York, 94 N.Y.2d 275, 94 N.Y.S.2d 275, 724 N.E.2d 372, emphasized "that CPLR 208 tolls a Statute of Limitations for the period of infancy, and the toll is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim" (Henry v. City of New York, 94 N.Y.2d 275, 278, 94 N.Y.S.2d 275, 724 N.E.2d 372). In Henry v. City of New York, 94 N.Y.2d 275, 94 N.Y.S.2d 275, 724 N.E.2d 372, the parent timely filed a notice of claim on behalf of her two sons, but did not commence a personal injury action and serve a summons and complaint on their behalf within the time limit that the City of New York argued was applicable pursuant to General Municipal Law 50-i, to wit, one year and 90 days. In holding that the infant plaintiffs' complaint was not time barred, even though it was served two years after the tort causes of action arose, the Court of Appeals specifically relied on an earlier Second Department case and "noted that 'because of the disability of infancy, the bar of the statute never became effective'" (Henry v. City of New York, supra at 280, quoting Abbatemarco v. Town of Brookhaven, 26 A.D.2d 664, 272 N.Y.S.2d 450). The Court further proclaimed that "the special status that is accorded an infant plaintiff by virtue of the infant's tender not altered by the action or inaction of the infant's parent or guardian" (Henry v. City of New York, supra at 279-280). In conclusion, the Court declared that "infant plaintiffs should not be penalized by a parent's compliance with General Municipal Law 50-e in an effort to protect a right to recovery. Infancy itself, the state being 'a person [under] the age of eighteen' (CPLR 105[j]), is the disability that determines the toll. An interpretation of the infancy toll which measures the time period of infancy based on the conduct of the infant's parent or guardian cuts against the strong public policy of protecting those who are disabled because of their age (see, Valdimer v. Mount Vernon Hebrew Camps, 9 N.Y.2d 21, 25, 210 N.Y.S.2d 520, 172 N.E.2d 283; see also, CPLR art. 12). Because plaintiffs here were under the age of 18 when their causes of action accrued, they are entitled to the benefit of the infancy toll, and their claims against the City are not time-barred." (Id. at 283).