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When calculating whether a child's claim against their school may be time-barred, the tension rises, and the concern in the parents' voice is unmistakable.
And the next line is entirely predictable:
"But we didn't know! How can that be held against us if we didn't know? Doesn't delayed discovery of the issue toll the time to file?"
What Statutes of Limitations Are - And Are Not - Tolled When it Comes to School Liability Cases
In the first instance, let's define what a statute of limitations is:
In short, it's a law that prescribes a specific period of limitation for the bringing a particular kind of legal action. For example, as a general rule, breach of contract actions in New York must be brought within six (6) years following the breach. Negligence actions, also known as garden-variety personal injury actions, on the other hand, must generally be brought within three (3) years following the incident.
When the case is brought against a municipality or public school district, however, that time is reduced, and suit must be filed within 1 year and 90 days post-incident. See, Education Law § 3813; NY Gen. Mun. Law Section 50-e.
That time limit may be extended, or, in legalese, "tolled," on account of a number of different grounds, including infancy, insanity, or incompetence, until the reason underlying that toll comes to an end.
Consequently, the next question is predictable - and flows - from the first question:
"So that means that we get 1 year and 90 days from when our child turns 18 to start filing our claim, right?"
The short answer is no, it does not.
The Limitations of the Infancy Toll in the School Negligence Context
While it is true that the time to file the lawsuit may, in some circumstances, be tolled on account of the child not yet having turned 18 years old (and therefore no longer being considered an "infant" in the eyes of the law), that doesn't get you out of the proverbial woods, because there is another requirement that must be met before you can file suit against a municipality or public school - you must serve a Notice of Claim on them that lays out the basic facts and legal theories underlying the claim - and that must be done within 90 days of the occurrence.
And, the caselaw on this issue is clear:
Absent truly extenuating circumstances, that 90 days will not be extended, and even then, the outer limit of that extension will be for 1 year and 90 days post-incident. In that regard, New York's courts have articulated this principle as follows:
"A claimant must petition for leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, within one (1) year and 90 days from the date which the claim accrues. Otherwise the claim is barred by the statute of limitations (see GML § 50–e ; Laroc v. City of New York, 46 AD3d 760, 847 N.Y.S.2d 677 [2 Dept., 2007] )."
The takeaway from the foregoing should be clear: if you have any question whether you have a viable claim against your child's school, it is imperative that you contact an attorney that is knowledgeable in this area of the law as soon as possible; the clock is ticking.