On extremely rare occasions, counsel may be consulted on behalf of a horribly damaged cognitively impaired person who seeks to commence an action after the normal statute of limitations has run. Before rejecting the case outright, counsel should investigate whether there may be a permissible tolling of the statute of limitations for “insanity,” within the scope of CPLR §208, which will allow the action to be timely commenced. In this article we will discuss basic concepts with respect to this toll, how the term “insanity” has been defined by the courts, and when the toll may be applicable.” Insanity” as defined by the courts may or may not have the meaning that we ordinarily attribute to the word.

Reliance upon tolling the statute for insanity should be approached with extreme caution. In accordance with the legislative intent, its applicability has been very narrowly construed by the courts and such tolling should never be relied upon lightly to extend a statute of limitations. This toll is far less clearly defined than the toll for infancy and has been largely defined by judicial interpretation.

CPLR §208 permits a tolling of the statute of limitations for infancy and insanity. It provides:

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 the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy.

This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.

Conspicuously absent from the statute is a definition of insanity. As such, it has been largely left to the courts to define the type of disability that may occasion an insanity toll. The landmark case is McCarthy v. Volkswagen of Am., 55 N.Y.2d 543 (1982), in which plaintiff sought to toll the statute of limitations, claiming that he had suffered from a “post traumatic neurosis.” His contention was that he could function normally in many respects shortly after the accident. However, as a result of his post traumatic neurosis, he had attempted to repress and forget as much of the accident as possible. It was alleged that he had difficulty in cooperating with counsel or understanding his rights regarding the accident. The record disclosed, however, that after the accident, plaintiff entered college, resumed participation in athletics and returned to his job in a supermarket. In fact, during the period of plaintiff's claimed legal incapacity, a third-party complaint against the City of New York was filed on his behalf.

Although the motion court in McCarthy held that plaintiff's post- traumatic neurosis rendered him “insane” within the scope of CPLR §208, both the Appellate Division and the Court of Appeals disagreed. They held that he was not entitled to the toll. After examining the legislative history, the Court of Appeals stated that the toll for insanity should be interpreted narrowly. It observed that, although a temporary mental affliction arising from the accident in question could give rise to the toll for insanity, the issue in McCarthy was “whether an individual capable of managing his general business and social affairs, yet assertedly incapable of dealing with the fact of a previous accident, may claim the toll for insanity.” Id. at 547-48.

In rejecting plaintiff's claim in McCarthy, the Court of Appeals articulated the general standard to be used in determining whether the toll for insanity would be applicable in any particular case. It held:

[We] believe that the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society.

Shortly, thereafter, in Eisenbach v. Metro. Transp. Auth., 62 N.Y.2d 973 (1984) the Court of Appeals found that the toll should be not be extended to include the temporary effects of pain killing medications administered in the treatment of physical injuries for a 68-day period following the accident. Plaintiff claimed that the medications temporarily left him confused, disoriented, and unable to effectively attend to his affairs. The court opined that an expansion of the statute to encompass this type of disability should be addressed by the legislature.

Application of the Toll to Serious Mental Disability

The courts have found the toll to be applicable to serious mental disability. For example, in Barnes v. Onondaga County, 65 N.Y.2d 664 (1985), a tragic motor vehicle case, plaintiff suffered devastating physical injuries resulting in quadriplegia, and the death of her infant daughter. Plaintiff's physician established that she suffered from a severe psychiatric disorder. The Court of Appeals affirmed the Appellate Division's determination that plaintiff was unable to protect her legal rights because of her over-all inability to function. The decisive issue was not the physical injuries, but that she had a bona fide psychiatric disorder which prevented her from protecting her legal rights.

In Cairl v. County of Westchester, 150 A.D.2d 749 (2d Dept. 1989), the court upheld the insanity toll where plaintiff suffered from “paranoid schizophrenia and borderline personality disorder with symptoms of hallucinations and impulsive suicidal behavior necessitating frequent and multiple hospitalizations, constant medication and psychotherapy.” The court found that she had an “over-all inability to function in society” from the time her cause of action accrued until she moved to file a late notice of claim, which motion was granted. In Grasso v. Matarazzo, 288 A.D.2d 185 (2d Dept. 2001), the toll was similarly upheld where the plaintiff suffered from paranoid schizophrenia and submitted medical documentation demonstrating his condition and his inability to protect his legal rights because of the disability.

In Hwang v. Grace Rd. Church (in New York), 2016 WL 1060247 (E.D.N.Y. 2016), the court stated that although mental illness alone does not compel statutory tolling for insanity, plaintiff's diagnosed paranoid schizophrenia, exacerbated psychotic symptoms, hospitalizations, and prescribed medication reflected an “over-all inability to function in society” and warranted application of the toll.

In Schulman v. Jacobowitz, 19 A.D. 3d 574 (2d Dept. 2005), the court rejected defendant's argument that the toll was inapplicable because plaintiffs failed to show that decedent's disability continued uninterrupted until his death. Although his medical records indicated that, at times during the relevant disability period, he was alert and able to intelligently communicate, the court held that the test was not whether the decedent ever attained lucidity, but whether, generally, he was “unable to protect [his] legal rights because of an over-all inability to function in society.” The court found that the serious nature of the decedent's physical and mental condition which persisted during the relevant time period through his death, entitled plaintiff to the benefit of this toll.

The standard to invoke the insanity toll has proved to be a high bar and any case in which the toll is contemplated should be closely examined and the records carefully scrutinized. For example, in Rodriguez v. Mount Sinai Hosp., 96 A.D.3d 534 (1st Dept. 2012), the court determined that despite plaintiff's depression and anxiety, she was able to protect her legal rights and function in society. Similarly, in Estate of Smulewicz v. Meltzer, Lippe, Goldstein & Breitstone, 160 A.D.3d 543 (1st Dept. 2018), the court rejected plaintiffs' argument that the limitation period was tolled by decedent's dementia. There was no evidence that the decedent suffered from such a disability at the time the claim accrued or that it rendered her unable to protect her legal rights.

Retention of Counsel by a Legal Representative

In the case of extreme disability, a legal representative may be appointed to act on behalf of the incapacitated person. The issue has arisen as to whether the term of the toll set forth in the statute is terminated by the appointment. This was specifically addressed in Costello v. N. Shore Univ. Hosp. Ctr. for Extended Care and Rehabilitation, 273 A.D.2d 190, 191 (2d Dept. 2000), where the court found that a valid toll for insanity would not be terminated by the acts of a parent, guardian or legal representative taking steps to protect the legal rights of an incapacitated person. In this respect, it analogized the insanity toll to the infancy toll and permitted a later commenced action. It held:

In the recent case of Henry v. City of New York (94 NY2d 275), the Court of Appeals concluded, in a matter which concerned a disability because of infancy, that CPLR 208 tolled the Statute of Limitations for the period of that disability, and the toll was not terminated by the acts of a parent, guardian, or legal representative in taking certain steps, i.e., the filing of a notice of claim, to protect that infant's legal rights. The rationale of Henry should be applied to the present case. The plaintiff remained disabled during the entire time period pertinent to this litigation. Although the plaintiff's son commenced a legal action on her behalf in October 1992, his actions did not terminate the tolling provisions of CPLR 208 for the purposes of the current litigation.

In Carrasquillo v. Holliswood Hosp., 37 A.D.3d 509 (2d Dept. 2007), the incapacitated person required long-term care and the appointment of a guardian ad litem as a result of incapacity from brain injuries. The court held that even though the plaintiff was appointed as guardian, it would not terminate the insanity toll before the time provided in the statute. As such, a second action commenced more than six years after a prior action was not time barred. In Ferreira v. Maimonides Med. Ctr., 43 A.D.3d 856 (2d Dept. 2007), the statute of limitations was tolled where the incapacitated person suffered significant mental deficits after two strokes. The court further found that, contrary to the defendant's contention, the toll was not terminated when his guardian, the plaintiff, retained an attorney. See also Giannicos v. Bellevue Hosp. Med. Ctr., 42 A.D.3d 379 (1st Dept. 2007) (insanity toll did not terminate upon the appointment of guardian; leave to serve a late notice of claim was properly granted); Mederos v. New York City Health and Hosps. Corp., 154 A.D.3d 597 (1st Dept. 2017) (insanity toll did not terminate upon the appointment of guardian but toll did not extend 90-day period to file notice of claim). It should be noted that there does remain some earlier pre-Henry case law to the contrary, finding that the toll for insanity can cease to operate when there is a representative entitled to protect the disabled plaintiff's rights who commences an action on his or her behalf. See Smith v. Kelley, 228 A.D.2d 831 (3d Dept. 1996).

In Kealos v. State, 150 A.D.3d 1211 (2d Dept. 2017), claimant's decedent fell at Stony Brook University Hospital. He sustained a subdural hematoma and remained in a coma until his death. The court held that the time to commence the action was extended by the period of disability and only the removal of the disability or death could end the toll. Claimant established that the decedent was under a legal disability from the day of the accident until the disability ended with his death.

In many cases, the question of whether there is a disability severe enough to merit a toll for insanity is fact sensitive and requires a hearing. For example, in Santana v. Union Hosp. of Bronx, 300 A.D.2d 56 (1st Dept. 2002), plaintiff suffered cardiac arrest resulting in anoxic encephalopathy, hemiplegia and global aphasia while undergoing a caesarian section. Plaintiff asserted a toll for insanity in that brain damage prevented her from protecting her legal rights at least until the date of her discharge from a care facility about a year after the accident. Defendants interposed a statute of limitations defense, claiming that her disability was physical, not mental, and, as such, the toll was not applicable. The court directed a hearing. So too, very recently, in Brigade v. Olatoye, 167A.D.3d 462 (1st Dept. 2018), the court determined that the medical records presented an issue of fact as to whether petitioner possessed “an over-all ability to function” during the relevant tolling period claimed by petitioner.

Involvement in Legal Proceedings

The courts have sometimes shown a reluctance to toll a statute of limitations for insanity where the injured person has interacted with an attorney or taken legal action. In Burgos v. City of New York, 294 A.D.2d 177 (1st Dept. 2002), plaintiff was not entitled to a toll where he claimed dementia and a psychotic disorder due to multiple longstanding medical conditions where he engaged an attorney and verified a notice of claim within a year after the alleged malpractice. He also signed authorizations, testified lucidly at a §50-h hearing and deposition and requested and received various forms of public assistance.

In Thompson v. Metro. Transp. Auth., 112 A.D. 3d 912 (2d Dept. 2013), plaintiff's decedent was hit by a train. He survived his injury and retained an attorney, who prepared and served notices of claim. He thereafter served and filed a summons and complaint. Defendants moved to dismiss, claiming that the action was time barred. While that motion was pending, the injured person died. His administrator was substituted as the party plaintiff and opposed the motion, asserting that the statute was tolled during the period of decedent's 49-day hospitalization. The court denied the toll, noting that he retained an attorney during the hospitalization.

Application of the insanity toll is quite fact sensitive and only applicable in rare situations. However, the toll may be critically important in those rare instances to open the courthouse doors to an individual who cannot function in society.

Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm.