179 Misc. 2d 289 | N.Y. Sur. Ct. | 1998
OPINION OF THE COURT
On October 7,1993, a collision occurred between a van owned and operated by defendants and an automobile owned by the infant plaintiffs father, Kelly Wright. The infant plaintiff and his mother, Carolyn Wright, were passengers in the latter vehicle. Kelly Wright and Carolyn Wright brought suit on February 8, 1994 to recover damages for personal injuries they sustained as a result of the accident, and a jury verdict for full liability against defendants was returned on April 13, 1998. The present action on behalf of the infant plaintiff was commenced on May 11, 1998. In their verified answer to plaintiffs complaint, defendants assert the Statute of Limitations as an affirmative defense.
Plaintiff, pursuant to CPLR 3211 and 3212, now moves for summary judgment on the issue of liability on the ground that defendants are collaterally estopped from relitigating the issue
CPLR 208 provides, in relevant part, “[i]f 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 for commencing the action is three years or more * * * the time within which the action must be commenced shall be extended to three years after the disability ceases.”
Until the statute was amended in 1974 (L 1974, ch 924, § 2), the toll for infancy was available to a person “under the age of twenty-one years.” (CPLR former 208.) In recent years, the appellate courts of New York have shown a willingness to carefully scrutinize the exact language of the current statute and to narrowly construe when a “disability because of infancy” applies to toll the Statute of Limitations. In Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687, 694 [1991]), the Court of Appeals held that, in a wrongful death action where the sole distributee was an infant, “the Statute of Limitations is tolled only until appointment of a guardian or the majority of the sole distributee, whichever is earlier, when letters of administration may issue and a personal representative may assume the role of plaintiff. That is the first time there exists a potential personal representative entitled to ‘commence an action’ (see, CPLR 208; SCPA 1001 [2], [6]). Establishing the earliest time for removal of the disability in the unusual situation presented accommodates both the interests of the infant and those of society in barring stale claims.” Although, in Hernandez, the toll was applied to save what was statutorily the estate’s claim, but was essentially the infant distributee’s right of recovery, the language employed by the Court of Appeals makes it clear that the mere assertion of infancy is insufficient to invoke the toll. Further, in Baez v New York City Health & Hosps. Corp. (80 NY2d 571, 576 [1992]), where decedent’s will named her mother executrix of her estate and guardian of her infant children, the Court of Appeals held that,
The import of Hernandez, Baez and Henry (supra), therefore, is such that the disability for infancy terminates when a personal representative is appointed to protect the interests of the infant or a potential personal representative acts affirmatively to protect the legal interests of the infant. (See also, Monaghan v SZS 33 Assocs., 827 F Supp 233, 243 [SD NY 1993].)
The court must therefore examine whether the parents (and natural guardians) of the infant acted affirmatively to protect
The only affirmative act the parents ostensibly took which may be construed to protect the infant’s legal rights prior to commencement of this suit was to file for no-fault benefits. This, however, is neither an assertion of any claim to benefit the infant nor a protection of the infant’s rights since it is the parents, not the infant, who are legally responsible for the care and medical treatment of the infant. Thus, the filing of a no-fault benefit claim does not inure to the direct benefit of the infant, who is merely the consequential beneficiary of the medical treatment paid for by no-fault benefits, but rather serves to recompense the parents for the medical expenses incurred for treatment for their child. Thus, the filing for no-fault benefits for the infant by the parents cannot be considered an affirmative act to protect the legal interests of the infant such as to terminate the disability for infancy referred to in CPLR 208.
Further, the mere commencement of a lawsuit by the parents of the infant on their own behalf, without including the infant in the claim, cannot serve to terminate the statutory toll for infancy. At that point, the parents were clearly acting for their own benefit, if not contrary to the interests of the infant. Although the court believes that the ends of judicial economy would have been better served had the infant’s action been brought at the time the parents’ action was brought, the court declines to read the statute, Hernandez, Baez or Henry (supra) so broadly as to disallow the toll under these circumstances. Defendants’ cross motion will be denied.
With respect to plaintiffs motion for summary judgment on the issue of liability, “ [collateral estoppel * * * is but a component of the broader doctrine of res judicata which holds that, as to the parties in a litigation * * * a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action * * * This principle * * * is grounded on the premise that once a person has been afforded a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again” (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]). Here, it is not disputed that defendants were afforded a full and fair opportunity to litigate the issue of their negligence in the happening of the accident on October 7, 1993 and indeed did fully litigate the issue. Accordingly, they are estopped from contesting their liability in the present action and plaintiffs motion will be granted.
Therefore, it is ordered that plaintiff’s motion for summary judgment on the issue of liability is granted; and it is further ordered that defendants’ cross motion is denied; and it is further ordered that Carolyn Wright be substituted as plaintiff on behalf of the infant in this action by the Public Administrator of Kings County or, if such appointment is declined, by an independent guardian ad litem to be appointed by the court; and it is further ordered that plaintiff’s present attorneys are hereby relieved of all representation of the infant plaintiff in this action; and it is further ordered that the substitute plaintiff retain independent counsel to prosecute this claim and any corollary relief; and it is further ordered that, upon payment of their out-of-pocket disbursements, plaintiff’s present attorneys turn over their file in this matter to substitute
Here, the parents recovered a total of $500,000 on their respective claims. The photograph of the infant plaintiffs facial scarring attached to the plaintiffs papers show significant disfigurement. The papers do not indicate to what extent, if any, coverage exists in excess of the amount already paid out by defendants.