62 N.Y.2d 973 | NY | 1984
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
Appellant, Robert Eisenbach, in November 1982 commenced this negligence action against respondents, Metropolitan Transportation Authority and Long Island Railroad, alleging that in August 1981, while a passenger, he fell from one of respondents’ trains and was struck by another, sustaining extensive physical injuries. Respondents moved to dismiss the complaint as time-barred (CPLR 3211, subd [a], par 5). The parties have agreed that the applicable limitations period is one year and 30 days; this action was not in fact commenced until one year and 80 days after the accident. The issue presented is whether the limitations period should have been tolled, pursuant to CPLR 208, for the 68-day period following the accident during which appellant, while hospitalized and treated with strong pain-killing drugs, was, in his words, “generally confused, disoriented, and unable to effectively attend to [his] affairs.” Appellant claims that he is entitled to the benefit of the tolling provision because this disability amounted to “insanity” within the meaning of CPLR 208. Special Term denied respondents’ motion to dismiss, concluding that there was a triable issue of fact as to whether appellant’s condition “was such that he was mentally incapable of protecting his rights and handling his own affairs.” The Appellate Division reversed and granted respondents’ motion to dismiss the complaint, holding that “ ‘the toll claimed by [appellant] in this instance is untenable as a matter of law’ ”. (97 AD2d 808, 809.)
In McCarthy v Volkswagen of Amer. (55 NY2d 543) we held that a toll claimed by the plaintiff on the basis of “post
Order affirmed, with costs, in a memorandum.
To the extent that Matter of Hurd v County of Allegany (39 AD2d 499) may be read to support a contrary result it should not be followed.