Courts Must Follow the Law
Q: Thirteen months ago, my uncle fell onto the subway tracks. He was hit by a train. For the next seven weeks, my uncle lay in the hospital, immobile from surgical procedures, laced with painkillers, getting his customary methadone and writhing for a cigarette. In between that and my uncle’s usual severe depression, his attorney found it very difficult to move forward – although he did manage to serve a notice of claim on the MTA a few weeks after the fall. Now my uncle is being told that it is too late to start a personal injury action.
A: So far as is applicable, section 1276(2) of New York’s Public Authorities Law provides that no action against the MTA founded on tort (except for wrongful death) may be commenced more than a year after the accident. However, under section 208 of New York’s Civil Practice Law and Rules, the deadline can get extended by a period of insanity. Our courts are very parsimonious in permitting this dispensation. They have ruled that the break for insanity does not encompass the temporary effects of medications administered in the treatment of physical injuries. Given that your uncle was able to retain an attorney, it is very difficult to contend that he was insane. When section 208 was enacted, a legislative committee considered the possibility of substituting the phrase mental illness for the term insanity, but rejected that possibility. The courts are not permitted to rewrite this law. They are obliged to follow it. Unless there are facts that you have failed to mention, I am apprehensive that your case can go no further.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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