Insanity Toll Of CPLR 208 Applies To Stroke Victim

CPLR 208 provides in pertinent part:

If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and * * * if the time otherwise [limited for commencing the action] is less than three years, the time shall be extended by the period of disability.

But “insanity” does not necessarily mean insanity. An example is given by the Second Department’s decision last week in Ferreira v Maimonides Med. Ctr., 2007 NY Slip Op 06627 in which the insanity toll of CPLR 208 was applied to stroke victims.

In that case, Jose Arias was admitted to the defendant hospital on January 25, 2001 because of weakness on his right side and inability to speak. By January 29, 2001, he had suffered two strokes that resulted in significant physical and mental deficits, leaving him unresponsive and in need of breathing and feeding support. A doctor who visited Arias in July 2003 described him as aphasic, having no spontaneous movement on his right side, and only limited, weak movement on his left side. Further, Arias was being fed intravenously, needed to be bathed and clothed by hospital staff, and did not move from his bed unless carried. Arias was also breathing through a breathing tube. Indeed, Arias still required breathing and feeding support when transferred to a skilled nursing facility in September 2003.

In October 2004 Arias’ guardian commenced an to recover damages for medical malpractice. The defendant moved to dismiss the complaint as time barred, arguing that Arias’ cause of action accrued no later than January 29, 2001. The plaintiff argued that the two and a half year statute of limitations of CPLR 214-a was tolled, inter alia, by the insanity toll of CPLR 208. The Supreme Court granted the defendant’s motion to dismiss the complaint as time barred, finding that the insanity toll did not apply.

However, the Second Department reversed and reinstated the complaint. The Court stated that the insanity toll of CPLR 208 was available to those individuals who are unable to protect their legal rights because of an over-all inability to function in society. And it found that the plaintiff had made a prima facie showing that this was the case for Arias.

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