School districts are advised to use caution when dealing with similar circumstances. In Henry vs. City of New York , which was brought before the Second Department, a number of children ingested lead paint while living in an apartment building owned by the city. The children claimed that this would not have happened but for the city's negligence in the ownership, maintenance and control of the building. The mother of one of the children hired a lawyer, who served the city with a notice claim within three months, as required by state law. However, the attorney failed to commence a lawsuit on behalf of the children within one year and 90 days, as is also required by state law.
Identical deadlines apply to legal claims against school districts.
When the attorney for the children commenced the lawsuit against the city sometime later, the city asked the court to dismiss the suit as untimely. The law generally affords infant plaintiffs additional time in which to satisfy deadlines for filing lawsuits. On appeal, the Second Department reversed the lower court decision and threw out the lawsuit against the city. The Appellate Division, First Department reached a different conclusion on the same issue in Rosado vs. Langsam Property Service Corp . In Rosado , as in the Henry case, an infant plaintiff's guardian, who was represented by counsel, filed a timely notice of claim but then failed to start the lawsuit within one year and 90 days.