
    Carmen Baez, as Executrix of Rosa J. Caraballo, Deceased, and as Testamentary Guardian of Lisa R. Caraballo and Another, Infants, Appellant, v New York City Health and Hospitals Corporation et al., Respondents, et al., Defendants.
    Argued November 20,1992;
    decided December 22, 1992
    
      POINTS OF COUNSEL
    
      Stuart A. Mack, New York City, for appellant.
    I. The time for commencement of plaintiffs actions was tolled by statutory prohibitions contained in CPLR 204 (a) and 208, by reason of and until appointment of a guardian for the sole infant distributees of the decedent, which was necessary to obtain a personal representative to commence this proceeding, and, therefore, the Statute of Limitations prescribed by law was tolled for the duration of time until the appointment of the said guardian or personal representative (or until the infant reached majority) whichever first occurred, which time is excludable from the time within which the actions must be commenced, in the absence of any demonstrable actual prejudice to defendants-respondents. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Sharrow v Island Lines, 214 NY 101; Caffaro v Trayna, 35 NY2d 245; George v Mt. Sinai Hosp., 47 NY2d 170; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, 51 NY2d 957; Roldan v Allstate Ins. Co., 149 AD2d 20; Gonzalez v New York City Hous. Auth., 77 NY2d 663; Collins v New York City, 55 NY2d 646.) II. Defendants are precluded from relitigating the issue of whether this action is tolled by CPLR 204 (a) and 208 or until appointment of a guardian, personal representative or an infant reaches majority (whichever occurs first) by the order of this Court, dated December 23, 1991, in Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687). (Schultz v Boy Scouts of Am., 65 NY2d 189; Schwartz v Public Adm’r of 
      
      County of Bronx, 24 NY2d 65; McCue v Arel, 171 AD2d 845; George v Mt. Sinai Hosp., 47 NY2d 170; Statter v Statter, 2 NY2d 668; B. R. DeWitt, Inc. v Hall, 19 NY2d 141.) III. The statutory prohibitions contained in McKinney’s Unconsolidated Laws of NY § 7401 (1) and General Municipal Law § 50-h are excludable time periods for purposes of the toll contained in CPLR 204 (a) and the Statute of Limitations for each cause of action is extended by the like excludable period, thereby extending the time within which the within actions could have been brought from July 17, 1987 to December 1987, and when the toll for infancy is added, the extension of time within which plaintiff could bring the complaint ran to August 17, 1988 making all actions herein timely, as a matter of law. (Roldan v Allstate Ins. Co., 149 AD2d 20; Wakefield v Board of Educ., 274 App Div 884, 299 NY 664; Amex Asphalt Corp. v City of New York, 263 App Div 968, 288 NY 721; Kowalski v New York City Dept, of Corrections, 66 AD2d 814.) IV. The tolls and stays provided for in CPLR 204 (a) and 208 are applicable to the cause of action for conscious pain and suffering making service of the complaint on July 24, 1987 timely, as a matter of law. V. The nisi prius court found that the doctors defendants-respondents were united in interest with the corporation under CPLR 203-b (1), and the Court below did not contradict that finding, only determining erroneously that if the action failed against the hospital corporation as time-barred, it failed against said doctors. Since appellants have shown the timeliness of the action against the corporation, likewise, the actions against the doctors must be reinstated. (Caffaro v Trayna, 35 NY2d 245.)
    
      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Stephen J. McGrath and Leonard Koerner of counsel), for respondents.
    I. The infancy of the decedent’s distributees does not serve to toll the one-year and 90-day limitations period since plaintiff was the named executor under the decedent’s will and thus was, at decedent’s death, a "potential personal representative entitled to 'commence an action’ ” for wrongful death. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687, 694 [1991].) Even assuming the infancy tolled the limitations period on the wrongful death action, any claim for personal injuries is time-barred. (Brennan v City of New York, 59 NY2d 791; DeGradi v Coney Is. Med. Group, 172 AD2d 582, 78 NY2d 860; Williams v City of New York, 97 AD2d 372; Hernandez v New York City 
      
      Health & Hosps. Corp., 169 AD2d 535; Matter of Sellers v Motor Vehicle Acc. Indem. Corp., 20 AD2d 350; Wikoff v Hirschel, 258 NY 28; Hammie v City of New York, 143 AD2d 805; Williamson v Lee Opt. Co., 348 US 483; Maresca v Cuomo, 64 NY2d 242, 474 US 802.) II. Plaintiffs argument that the period of limitations is tolled pursuant to CPLR 204 (a) was never raised in the courts below and thus was not preserved. Should this Court reach that argument, it should be rejected since the one-year and 90-day limitations period contained in McKinney’s Unconsolidated Laws of NY § 7401 is not tolled by virtue of its own requirement that plaintiff await 30 days after serving a notice of claim prior to bringing suit, or by the request for a hearing pursuant to General Municipal Law § 50-h. Likewise the time to commence suit against the individual doctors is not tolled pursuant to CPLR 204 (a). (General Municipal Law §§ 50-i, 50-k [6].) (Quoin v Buzzetta Constr. Corp., 69 NY2d 376; Massie v Crawford, 78 NY2d 516; Telaro v Telaro, 25 NY2d 433; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Matter of Burns v Quinones, 68 NY2d 719; Bender v Jamaica Hosp., 40 NY2d 560; Joiner v City of New York, 26 AD2d 840; Astromovich v Huntington School Dist., 80 AD2d 628, 56 NY2d 634; Graber v City of New York, 89 AD2d 598; Rose v Metro N. Commuter R. R., 143 AD2d 993, 73 NY2d 994.) III. The record does not establish that the individual defendants, Drs. Chen and CeCe, were united in interest with defendant Health and Hospitals Corporation. (Brock v Bua, 83 AD2d 61; Lamb v Prime Computer, 158 AD2d 798.)
   OPINION OF THE COURT

Smith, J.

The primary issue presented on this appeal is whether CPLR 208 applies to toll the Statute of Limitations for commencing an action for wrongful death and conscious pain and suffering on behalf of infant beneficiaries where the decedent’s will named plaintiff executrix of her estate and stated that plaintiff should be appointed guardian for her infant children. We hold that CPLR 208 does not apply to toll the Statute of Limitations under those circumstances because plaintiff, as executrix, could have timely sought appointment as the personal representative of the decedent’s estate and commenced the action on the infants’ behalf (see, EPTL 5-4.1).

On April 17, 1986, Rosa Caraballo, then a 30-year-old widow and mother of two daughters, ages 8 and 10, died while receiving care and treatment at Elmhurst General Hospital, a facility owned and operated by defendant New York City Health and Hospitals Corp. (NYCHHC). Prior to her death, Rosa Caraballo had executed a will naming her mother, Carmen Baez, executrix of her estate and stating that she should be appointed guardian of the infant children. On October 7, 1986, letters testamentary were issued to Carmen Baez authorizing her to administer her daughter’s estate. Letters of guardianship for the decedent’s two children were issued to Carmen Baez on November 18, 1986.

On January 5, 1987 Carmen Baez, on behalf of the infants, filed a notice of a claim for wrongful death and conscious pain and suffering against defendant NYCHHC. On July 24, 1987, more than one year and 90 days after her daughter’s death, Baez served a summons and complaint upon defendant NYCHHC. Baez then commenced a second wrongful death cause of action against two doctors who allegedly operated on the infants’ mother by serving another summons and complaint on Dr. Yen Chen on April 21, 1988 and on Dr. John CeCe on June 17, 1988. All three defendants moved to dismiss the actions upon the ground that the Statute of Limitations for commencing the actions had expired or, alternatively, to consolidate the actions. Plaintiff cross-moved to dismiss the Statute of Limitations defenses, arguing that the actions were timely because CPLR 208 applied to toll the Statute of Limitations until letters of guardianship were issued.

Supreme Court granted plaintiff’s cross motion to dismiss the Statute of Limitations defenses, holding that "[i]nasmuch as the sole distributees of the decedent are the infants and the disability of infancy prevents an action from being commenced on their behalf until a guardian is appointed for them, the applicable statute of limitations is tolled until the date of the guardian’s appointment.” The Appellate Division reversed the order, denied plaintiff’s cross motion to dismiss the affirmative defenses of untimeliness and granted defendants’ motion to dismiss the complaints as time-barred. The Court held that "the limitations period commenced running on the date of the decedent’s death rather than on the date of [the] appointment [of decedent’s mother] as executrix or guardian * * * and a toll for infancy pursuant to CPLR 208 is unavailable as there was an adult relative of the deceased who could have instituted the action on behalf of the decedent” (168 AD2d 529, 530). The Appellate Division granted plaintiffs motion for leave to appeal to this Court.

Under the EPTL, personal representatives of a decedent have two years, measured from the date of death, in which to commence a wrongful death cause of action (EPTL 5-4.1). However, at the time the present action was commenced, a one-year and 90-day Statute of Limitations applied to actions brought against this municipal defendant (McKinney’s Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2); L 1969, ch 1016, as amended]). A one-year and 90-day Statute of Limitations period also applied to actions commenced against employees of municipal defendants or public corporations (General Municipal Law § 50-i).

In this case, the decedent’s will named plaintiff Baez executrix of her estate. Upon her daughter’s death, plaintiff Baez could have timely sought appointment as a personal representative to commence the actions on behalf of the infant children and her failure to do so does not suspend the running of the applicable limitations period. The actions against defendants are untimely because they were not commenced until after the one-year and 90-day statutory period had expired.

In Ratka v St. Francis Hosp. (44 NY2d 604), the decedent was survived by his wife, an adult daughter and six infant children. More than two years passed during which neither the wife nor the daughter sought appointment as representative of the decedent’s estate for purposes of bringing a wrongful death action. One of the infant children, having subsequently reached majority, commenced a wrongful death action three years after the date of the father’s death. This Court held that "[t]he infancy of the decedent’s children will not suspend the running of the * * * Statute of Limitations for commencement of a wrongful death action” because a personal representative was not timely appointed despite the opportunity to do so (see, id., at 611-612).

Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687), cited to support the argument that CPLR 208 applies to toll the limitations period for commencing the actions, does not aid the plaintiff. There, this Court held that CPLR 208 applies to toll the Statute of Limitations for commencing a wrongful death cause of action on behalf of an infant intestate distributee until letters of guardianship are issued or majority of the intestate distributee, whichever occurs first, where there is no representative to commence the action on behalf of the infant before that time. Thus, this Court "construe[d] the toll of CPLR 208 to apply until the earliest moment there is a personal representative or potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first” (id., at 693).

Our holding in Hernandez does not control here because the decedent’s will named her mother executrix of her estate. The concern expressed in Hernandez of not reaching the unnecessarily harsh result of denying an infant claimant the right to assert a claim is absent in this case since the executrix provided for in the will could have timely sought appointment as the personal representative of the decedent’s estate and commenced the actions on infants’ behalf after the death of their mother (see, EPTL 5-4.1). Thus, we conclude that CPLR 208 does not apply to toll the applicable limitations period.

Plaintiff also argues that two waiting periods built into the statutory scheme serve to toll the Statute of Limitations pursuant to CPLR 204 (a). The waiting periods referred to involve the 30 days required between service of a notice of claim and commencement of an action (McKinney’s Uncons Laws of NY § 7401 [1]), and the time necessary for a claimant to comply with an examination request before commencing an action (McKinney’s Uncons Laws of NY § 7401 [2]). We conclude that the Legislature did not intend to extend the limitations period by inclusion of these waiting periods (cf., General Municipal Law § 50-i [3] [providing that none of the section’s provisions, including the 30-day waiting period and the § 50-h examination of claim, "shall operate to extend the (limitations) period.”]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs. 
      
       As of August 24, 1990, a two-year Statute of Limitations applies to wrongful death claims against NYCHHC (L 1990, ch 804, § 122; Public Authorities Law § 2981).
     