Wallace D. Gossett (Armienti, DeBellis, Guglielmo, & Rhoden, LLP, New York, N.Y. [Harriet Wong], of counsel), for appellants.
Tracy & Stillwell, P.C., Staten Island, N.Y. (John J. Tracy and Gaetano Parrienello of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Staten Island Rapid Transit Operating Authority, MTA Staten Island Railway, and Tyesha Witt appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated March 13, 2012, as denied those branches of their motion, made jointly with the defendant Metropolitan Transportation Authority, which were for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was time-barred.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the appellants on the ground that the action was time-barred are granted.
On February 13, 2008, the plaintiff's decedent fell on to the tracks of a railway operated by the Staten Island Rapid Transit Operating Authority (hereinafter SIRTOA). He was hit by a train operated by the defendant Tyesha Witt. The plaintiff's decedent survived his injury. In or about March 2008, the plaintiff's decedent retained an attorney, who prepared and served notices of claim.
The plaintiff's decedent commenced the instant action by filing a summons and complaint on March 25, 2009, naming, as defendants, the Metropolitan Transportation Authority (hereinafter the MTA) and two of its subsidiaries, SIRTOA and MTA Staten Island Railway (hereinafter together the SIRTOA defendants) (see Staten Is. R. T. Operating Auth. v International Bhd. of Elec. Workers Local 922, 57 A.D.2d 614, cert denied 434 U.S. 934), as well as Witt. In their joint answer, the defendants asserted that the action was time-barred, and cited to Public Authorities Law former § 1212, which then applied to tort actions against the New York City Transit Authority (see Crair v Brookdale Hosp. Med. Ctr. Cornell Univ., 94 N.Y.2d 524, 530), even though Public Authorities Law former § 1276 was then applicable to tort actions commenced against the MTA and its subsidiaries (see Rose v Metro N. Commuter R.R., 143 A.D.2d 993).
Thereafter, the defendants moved for summary judgment dismissing the complaint on the ground that it was barred by the 1-year-and-30-day statute of limitations provided for in Public Authorities Law former § 1276(2). While that motion was pending, the plaintiff's decedent died on June 7, 2010, and Sarah Thompson, as limited administrator of his estate, was substituted as the party plaintiff. The plaintiff filed opposition papers, asserting that the statute of limitations was tolled pursuant to CPLR 208, popularly known as the "insanity" toll, during the period of her decedent's hospitalization, to wit, the 49 days from February 13, 2008, until April 2, 2008. In support of that contention, she submitted an affirmation from an expert, who stated that he examined the hospital records of the decedent, and determined that, "to a reasonable degree of medical certainty" the plaintiff's decedent "faced an overall inability to function in society and protect his legal rights during his 49-day hospitalization, " based upon the fact that he underwent numerous surgical procedures under general anesthesia, was "overmedicated" with analgesic substances, and had ingested methadone for his opiate dependency. The plaintiff's expert further noted that the plaintiff's decedent had a "documented history of a severe depression with suicidal ideation, and the effects of nicotine withdrawal, " which required observation.
In reply, the defendants submitted the affidavit of their own expert, who stated that there was no evidence that the plaintiff's decedent suffered from cognitive impairment during his hospital stay, that the effects of surgical anesthesia are brief, and that there was no evidence that the plaintiff's decedent was placed in an induced coma. The defendants' expert further noted that, although the plaintiff's decedent had a history of anxiety and depression, "he was not diagnosed, treated for or managed for any mental disease, mental defect, mental disability or insanity during the course of his hospitalization."
As relevant to this appeal, the Supreme Court ruled that the toll set forth in CPLR 208 did in fact apply, and denied those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the SIRTOA defendants and Witt (hereinafter collectively the appellants).
CPLR 208 provides, in pertinent part, that where the plaintiff is suffering from the disability of insanity at the time the cause of action accrues, the statute of limitations is extended "by the period of disability." The toll for insanity applies "to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society, " and should be narrowly interpreted (McCarthy v Volkswagen of Am., 55 N.Y.2d 543, 548; see Simon v Bryski, 278 A.D.2d 224). "The provision of CPLR 208 tolling the Statute of Limitations period for insanity, a concept equated with unsoundness of mind, should not be read to include the temporary effects of medications administered in the treatment of physical injuries" (Eisenbach v Metropolitan Transp. Auth., 62 N.Y.2d 973, 975 [citation omitted]). Further, the fact that the plaintiff's decedent was able to retain an attorney, and arrange for the service of notices of claim during his hospital stay, indicated that he was not mentally incapacitated during that period (see Matter of Cerami v City of Rochester School Dist., 82 N.Y.2d 809, 813). Accordingly, the defendants established, prima facie, that the action was time-barred insofar as asserted against the appellants, and the plaintiff failed to raise a triable issue of fact in opposition.
The plaintiff's contention that the citation to the wrong statute of limitations in the defendants' answer waived the statute of limitations defense is without merit, since the plaintiff had ample notice of the defense relied upon by the appellants (see Matter of Corneilson v Sowles, 59 A.D.2d 637; Belmont v City of New York, 191 App Div 717).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as ...