Liebowitz v. B. Berglass, Inc.

OPINION OF THE COURT

Motion by defendant for an order pursuant to CPLR 3212 for summary judgment dismissing the complaint on the grounds that it is time-barred is granted.

*933Plaintiff, born on May 25, 1955, was injured in the course of her employment on April 23, 1973. The within action was commenced on October 5, 1977. Plaintiff argues that it has until May 25, 1979 to commence the within action pursuant to CPLR 208. Effective September 1, 1974, CPLR 208 and 105 (subd [i]) were amended and the definition of infancy was changed from a person who has not attained the age of 21 years to a person who has not attained the age of 18 years. Defendant argues that the last day for plaintiff to commence the within action was September 1, 1977 which represents a three-year tolling of the Statute of Limitations from the effective date of legislative change. On September 1, 1974 plaintiff lost her infancy status as she attained the age of 18 on May 25, 1973.

Neither party cites a case directly on point and independent research by this court has also failed to uncover such a case. However, over-all authority both in judicial dicta and Practice Commentaries by a leading scholar in the field support defendant’s argument. Dean McLaughlin in his supplementary practice commentaries supports the position that September 1, 1977 would be the outside date for someone who has attained 18 years of age before September 1, 1974 to commence an action. (See McLaughlin, McKinney’s Cons Laws of NY, Book 7B, CPLR 208, 1974 Supplementary Practice Commentaries.) In Robusto v Johnson (87 Misc 2d 76) the court permitted the commencement of an action in January, 1976 where plaintiff was 18 on August 31, 1972 and the cause of action arose on September 30, 1972. The court stated: "this court having concluded that the toll for infancy terminated on September 1, 1974, he had until September 1, 1977 to commence his action.” Similar reasoning is implied in McGill v Board of Educ. (59 AD2d 888, app dsmd 43 NY2d 893).

In conclusion, where a cause of action has accrued prior to September 1, 1974 to a person who has attained the age of 18 but not 21 before September 1, 1974, the tolling of the Statute of Limitations will end on September 1, 1974 and to that date will be added the particular Statute of Limitations with the caveat that, pursuant to CPLR 208, September 1, 1977 is the outside date for commencing any action where the applicable Statute of Limitations is three years or longer.