A plaintiff who asserts the applicability of the CPLR §208 toll in opposition to a motion for summary judgment is not entitled to an order denying the defendant’s motion for summary judgment unless the Court first holds a hearing to determine the period during which plaintiff was under a disability by reason of insanity. See, e.g., Dunn v. Town of South Hampton, 47 A.D.2d 919, 367 N.Y.S.2d 48, 49 (2d Dep’t 1975) (trial court’s denial of Town’s motion for summary judgment improper where court did not first hold a hearing to determine the period during which plaintiff was disabled because of insanity). Seealso, Hur v. City of Poughkeepsie, 71 A.D.2d 1014, 420 N.Y.S.2d 414 (2d Dep’t 1979); McNaughton v. City of New York, 234 A.D.2d 83, 650 N.Y.S.2d 688 (2d Dep’t 1996) (plaintiffs who claim to be psychologically incapable of submitting to an oral examination place their mental health in issue and entitle the defendant municipal entities to demand an independent psychological examination of plaintiff and a hearing pursuant to CPLR §228(a) for the purpose of determining whether the plaintiff the plaintiff is capable of submitting to a 50(h) hearing).
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