Statutes of Limitations for Infants: Does My Child Have More Time if We Sue the Government?
The general rule when you – an adult – set out to sue a governmental entity (i.e., the City of New York and/or any of its agencies), you must file a document, called a notice of claim, within ninety days of the date of your accident explaining the basis for your claims that the governmental entity and/or its agents injured you. You also, generally, must then file a formal lawsuit in court within one year and ninety days of the date of your injuries. This means that, when you set out to seek compensation from the government for your injuries, you must comply with two statutes of limitations – rather than one, which is the case in context of suing a private citizen or entity – or you will forever lose your rights to pursue your claims.
However, New York law has set out special rules – known as “statutory tolls” – that extend the period within which lawsuits may be filed (statutes of limitation) when the prospective plaintiff (the person who was harmed and in whose name the lawuit is to be brought) is a minor (an “infant” per the statutory vocabulary). Under Section 208 of the Civil Practice Law and Rules (the “CPLR”), infants are given an extension of statutes of limitation because the law views them as unable to tend to their own legal affairs (which is true, as infants do not have the same legal rights as adults, and further are, generally, obligated to obey their parents). In personal injury lawsuits, including with respect to those brought against the government, statutes of limitations are “tolled” – a legal term for “paused” – until they reach the age of majority (18 years old) and then the statute begins to run. For example, if a child of 7 years old is injured in a car crash with another private citizen, he or she will have until their 21st birthday to sue for their injuries. In a medical malpractice action, the same child will have ten years within which to sue for their injuries.
If, however, that same child is involved in a car crash with a government-driven or government-owned vehicle, he or she will need to have filed a notice of claim – or moved a court for leave to file a late notice of claim – within one year and ninety days of the date of the accident, or their claims will be saved. This is because Section 50 of the New York General Municipal Law does not allow a judge to extend the time within which to file a notice of claim beyond one year and ninety days, even though CPLR Section 208 extends other applicable statutes of limitation and further despite the fact that the typical infant plaintiff is in no better a position to file a notice of claim than they are to commence a lawsuit while they are a minor. In effect, this means that, even though the law recognizes that infants are not in a position to defend themselves in court and thus must be granted extra time within which to file a lawsuit (i.e., they must be given at least until they reach majority age, and thus presumably are able to defend themselves in court and assert their rights, to pursue their claims), the law grants special protection to the government and does not allow, for any reason, a lawsuit by an infant to be commenced if that infant does not file a notice of claim within one year and ninety days of the date of their accident. If the notice of claim is filed on time – or a motion to file a late notice of claim is made on a timely basis – the infant will then get the beneift of CPLR Section 208’s statutory toll.
The lesson inherent in this is that the law is complicated; if your child is injured, you need attorneys who know the law and who will be able to tell you quickly accurately how much time you have to preserve your child’s rights. Please do not hesitate to contact me and my team at (718) 354-8000 to discuss your child’s case; we will give you the advice you need to ensure that you do not inadvertently surrender any rights to compensation that you may have.