Children’s Injury Claims, Tolling and Court Approval in New York

Children’s claims, tolling, and court approval of a minor’s settlement

Authority: CPLR 208 (as revised 15 February 2019); CPLR 214(5); CPLR 1201, 1209; General Municipal Law § 50-e(5); 22 NYCRR 202.67 (infant’s compromise).

A child’s injury claim runs on different rules from an adult’s, and the most dangerous misconception is that the longer deadline means there is no hurry.

CPLR 208 tolls the limitations period while a person is under a disability because of infancy. Where the ordinary period is three years or more — as it is for personal injury — and would otherwise expire within three years after the disability ends, the time is extended to three years after the disability ends. In practice a child injured at eight generally has until three years after turning eighteen. The statute caps extensions at ten years from accrual, but that cap does not apply to infancy-based claims other than medical, dental and podiatric malpractice.

The trap is that tolling does not reach the municipal notice. A claim against a city, town, county, school district or transit authority still requires a Notice of Claim, and the court’s discretion to permit a late filing under General Municipal Law § 50-e(5) is just that — discretionary. Infancy is a factor the court weighs, not an automatic excuse. A school or playground injury is on a 90-day clock from the day it happens.

Practically, waiting also destroys cases. Witnesses move, surveillance is overwritten, and the defendant’s records are purged long before the child turns twenty-one.

A child cannot sue in their own name

Under CPLR 1201 an infant appears by a parent, guardian or a guardian ad litem appointed under CPLR 1202. The action is captioned accordingly, and the representative’s authority is part of the pleading.

A minor’s settlement requires court approval

No settlement of an infant’s claim binds the child without judicial approval. The infant’s compromise application under CPLR 1207 and 22 NYCRR 202.67 puts the terms, the medical proof, the fee and the proposed disposition of the funds before a judge. Without that order the release is not binding, which protects the child and also means an unapproved "settlement" has resolved nothing.

The money is protected until majority

Net proceeds are ordinarily deposited in an interest-bearing account or a structured settlement for the child’s benefit, withdrawable only by court order until the child turns eighteen. Parents are frequently surprised that they cannot access the funds, and the order should anticipate foreseeable needs.

The parent’s own claim is on the ordinary clock

A parent’s derivative claim — medical expenses paid and the loss of the child’s services — belongs to the parent, is not tolled by the child’s infancy, and expires on the ordinary three-year period. It is routinely lost while the child’s own claim remains alive.