Perez v. National Westminster Bank, USA

The alleged medical malpractice which forms the basis of this lawsuit took place during the delivery of the infant plaintiff in October 1975. Pursuant to CPLR 208, the 2-years- and-6-months Statute of Limitations governing medical malpractice actions (CPLR 214-a) was extended for 10 years from the time of accrual, or until the infant’s tenth birthday, in October 1985. Defendants’ decedent, the delivering doctor, died in April 1978.

This action, which was not commenced until November 1986, or 11 years and 1 month after the alleged malpractice, would normally have been time barred. However, CPLR 210 (b) provides for an 18-month period after the death of the person against whom a cause of action exists, during which the time for commencing an action against his executor or administrator is tolled. The defendant argues for a rule that where, as here, such a tolling of the Statute of Limitations occurs within a longer period of limitation, the two periods should merge and run concurrently. Pursuant to the holding in Glamm v Allen (57 NY2d 87), however, CPLR 210 (b) serves to add 18 months to the Statute of Limitations period. As applied to the case at bar, this additional toll renders the litigation timely. Concur—Murphy, P. J., Sullivan, Ross, Kassal and Smith, JJ.