Legal Memorandum: Tolling of a Notice of Claim Period for Disability

Issue: When may a notice of claim period be tolled for disability in New York?

When a notice of claim has not been served within the 90‑day period specified by §50‑e of the General Municipal Law, the claimant may apply to the court pursuant to §50‑e(5) for an extension of time within which to serve notice.  However, such an extension shall not exceed the time limit for the commencement of an action against a public corporation established by §50‑e, which limits the time for bringing an action to one year and ninety days after the happening of the event upon which the claim is based, subject to the tolls for infancy and insanity provided in CPLR §208.  See Cohen v. Pearl River U.F.S.D., 51 N.Y.2d 266, 434 N.Y.S.2d 138, 139.

Where a claimant is under a disability and CPLR §208 is applicable, “the 90‑day notice of claim filing period is not tolled, rather only the time in which to apply for permission to serve a late notice of claim is tolled;” Purdy v. Afton Central School Dist., 202 A.D.2d 776, 608 N.Y.S.2d 748, 749 (3^rd Dep’t 1994); see also Cohen v. Pearl River U.F.S.D., supra; Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 11 (1978).

A plaintiff must establish that he is entitled to a CPLR §208 insanity toll in order for plaintiff’s cross‑motion for leave to serve late notice to have been timely made within the applicable one year and ninety day statute of limitations.  See, e.g., McCarthy v. Volkswagen of America, Inc.,