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INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Infant plaintiff was allegedly injured when he tripped and fell over a discarded metal frame on village property. The court noted that the mother’s derivative cause of action was time-barred because the infancy toll of the statute of limitations did not apply to her:

… [T]he Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the mother in her individual capacity, as the statute of limitations for her derivative cause of action had expired at the time the proceeding was commenced … . The infancy toll (see CPLR 208) is personal to the infant and does not extend to a parent’s derivative cause of action … . Matter of R.N. v Village of New Sq., 2018 NY Slip Op 05595, Second Dept 8-1-18

MUNICIPAL LAW (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, MUNICIPAL LAW, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INFANCY TOLL (STATUTE OF LIMITATIONS, (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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WAIVED DEFENSE CAN BE INTERPOSED IN AN ANSWER AMENDED BY LEAVE OF COURT.
VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT).
SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER AN ACTION TAKEN BY THE UNKECHAUG INDIAN NATION TO EXCLUDE A MEMBER OF THE NATION FROM A PARCEL OF NATION LAND (SECOND DEPT).
A DEFENDANT’S RIGHT TO BE PERSONALLY PRESENT FOR SENTENCING EXTENDS TO RESENTENCING AND TO THE AMENDMENT OF A SENTENCE (SECOND DEPT). ​
THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT). ​
ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​
HERE THE PARTY WHO WAS AWARDED COSTS ON APPEAL WAS ENTITLED TO REIMBURSEMENT OF THE COST OF PROCURING THE TRANSCRIPTS FOR THE RECORD ON APPEAL (SECOND DEPT).
EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND... NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION,...