Jackson v Coler-Goldwater Specialty Hosps. & Nursing Facility, 2006 NY Slip Op 01091 [26 AD3d 198]

February 9, 2006

Appellate Division, First Department

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Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 25, 2004, which granted defendants’ motion to dismiss the complaint for failure to serve a notice of claim and as barred by the statute of limitations, and denied plaintiff’s cross motion for, inter alia, leave to serve a late notice of claim, unanimously reversed, on the law, without costs, the motion denied and the cross motion granted to the extent of remanding the matter for an evidentiary hearing to determine plaintiff’s mental capacity during the limitations period.

As defendants concede, the parties’ conflicting expert opinions raise a triable issue of fact as to the applicability of the CPLR 208 insanity toll, notwithstanding plaintiff’s retention of counsel shortly after sustaining the claimed injury ( see Henry v City of New York , 94 NY2d 275 [1999]; Jusino v New York City Hous. Auth. , 255 AD2d 41, 48 [1999]). Only in the event the toll is found to apply, and depending on the length thereof, can it be determined whether to grant leave to serve a late notice of claim ( cf. Cohen v Pearl Riv. Union Free School Dist. , 51 NY2d 256, 265-266 [1980]). Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Williams, JJ.