Verrone v. County of Westchester

— In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Westchester County (Burchell, J.), dated November 17,1980, which denied its motion pursuant to CPLR 3211 (subd [a], par 5) to dismiss the plaintiff’s complaint for failure to commence the action within the time prescribed by the appropriate Statute of Limitations (see General Municipal Law, § 50-i). Order reversed, without costs or disbursements, and matter remitted to Special Term for an evidentiary hearing to determine whether the Statute of Limitations was tolled by virtue of the plaintiff’s alleged disability because of insanity. The hearing shall be held before a Justice other than the one who made the order under review. A hearing is necessary to determine whether plaintiff was under a disability because of insanity at the time the cause of action accrued, March 20,1978, or at a later date. In the event such disability, if any, accrued at a later date, Special Term must determine whether it was causally related to the alleged incident of March 20,1978. The court should also determine the length of time that such disability, if any, existed between March 20, 1978 and August 7, *8791979, the date that this action was commenced by service of the summons and verified complaint (see CPLR 208; see, also, McLaughlin, 1973, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1980-1981 Pocket Part, CPLR C208:4, p 74). Damiani, J. P., Gibbons, Cohalan and O’Connor, JJ., concur.