## Facts

- Devon Henry (age three) and Eann Henry (age 11 months) lived with their mother, Evon Carmen Henry, in a City-owned apartment in New York City.
- In 1993, the children were discovered and medically confirmed to have been exposed to lead paint in the apartment.
- Evon Henry, on each child’s behalf, timely served notices of claim under General Municipal Law (GML) § 50-e alleging negligence in the City’s ownership, maintenance, and control of the apartment.
- The City conducted statutory hearings on the notices of claim and did not settle.
- In January 1995, Evon Henry commenced suit asserting (a) the infants’ personal injury claims and (b) her own derivative claims for loss of services.
- The action was commenced more than one year and 90 days after accrual, the limitations period stated in GML § 50-i.

## Issues

1. Whether CPLR 208 tolls the GML § 50-i one-year-and-90-day limitations period for an infant’s tort claim against a municipality.
2. Whether the infancy toll is terminated or forfeited when a parent or guardian timely serves a GML § 50-e notice of claim and otherwise takes steps to pursue the infant’s claim.
3. Whether an adult parent’s derivative claims may benefit from CPLR 208 based on the child’s infancy.

## Decision

- The Court of Appeals reversed the Appellate Division insofar as it dismissed the infants’ claims and reinstated those causes of action.
- The Court held that CPLR 208 tolls the statute of limitations for the duration of infancy and is not ended by a guardian’s acts in pursuing the claim, including timely service of a notice of claim.
- The dismissal of Evon Henry’s derivative claims remained undisturbed because CPLR 208 did not apply to her claims.

## Legal Principles

- CPLR 208 tolls a limitations period when a plaintiff is under a disability because of infancy at the time the claim accrues; the toll is determined by the infant’s legal status, not by parental diligence or representation.
- A guardian’s timely compliance with GML § 50-e (service of a notice of claim) does not extinguish or shorten the CPLR 208 infancy toll applicable to the infant’s subsequent action.
- The notice-of-claim requirement and the statute of limitations serve distinct functions; satisfying the former does not eliminate the infant’s statutory tolling protection for the latter.
- A parent’s derivative claims are governed by the parent’s own limitations period and are not tolled under CPLR 208 based on the child’s infancy.

## Conclusion

The court held that infants retain CPLR 208 tolling of the GML § 50-i limitations period even when a parent timely serves a municipal notice of claim, so the children’s lead-paint claims were timely, but the mother’s derivative claims were time-barred.


Henry v. City of New York, 94 N.Y.2d 275 (N.Y. 1999)