Infancy Toll Did Not Apply to Personal Injury Claims Brought on Behalf of Deceased Child
In Heslin v. County of Greene, 2010 N.Y. Slip Op. 01010 (Feb. 11, 2010), the Court of Appeals determined that the special infancy toll applicable in wrongful death actions involving sole infant distributees is not available for personal injury claims.  The Court drew a distinction between this case and the holding in Hernandez v. New York City Health & Hosps. Corp., 78 N.Y.2d 687 (1991), which allowed the infancy toll to be applied to save the late wrongful death claim. The Court qualified that a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate.  Such a claim is personal to the deceased and belongs to the estate, not the distributees.
Accordingly, in Heslin, the infancy of a deceased child’s sole distributees did not toll the limitations period applicable to personal injury claims brought by the personal representative of the child’s estate against county defendants who allegedly contributed to the child’s death at the hands of her mother’s boyfriend. As a result, the action was time-barred, although the personal representative was not appointed until after the statute of limitations had expired.
