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Davis v. St. Joseph's Children's Services

64 N.Y.2d 794 Court N.Y. Decision date 1985-02-05 English

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Charlene Davis, Appellant, v St. Joseph’s Children’s Services, Respondent.
Argued January 3, 1985;
decided February 5, 1985
p. 795
APPEARANCES OF COUNSEL
David J. Lansner for appellant.
Roger P. McTiernan, Sr., and Kathryn Deborah Nealon for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

As to denial of the cross motion to amend the complaint, we affirm for the reasons stated by the Appellate Division ( 99 AD2d 960 ; see, Video Corp. v Flatto Assoc., 58 NY2d 1026 , 1028).

With respect to the tort causes of action, the argument that the three-year Statute of Limitations was tolled by the continuous treatment doctrine was not made below and, therefore, is not properly before us.

No more helpful to plaintiff are the tolling provisions of CPLR 203 for infancy and insanity. Infancy is defined by CPLR 105 (j)

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as not having “attained the age of eighteen years”, and nothing in Social Services Law § 371 (19) and § 383 (2) suggests a legislative intent to extend the infancy toll of CPLR 208 beyond 18 for a person in foster care. The more particularly is this so with respect to Social Services Law § 371, for its definitions pertain only to words “when used in this article or in any special act relating to children”. Nor is foster care, without more, “an over-all inability to function in society” sufficient to invoke the toll for “insanity” contained in CPLR 208 (McCarthy v Volkswagen of Am., 55 NY2d 543 , 548; accord, Eisenbach v Metropolitan Transp. Auth., 62 NY2d 973 ).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judge Alexander taking no part.

Order affirmed, with costs, in a memorandum.

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