Opinion
December 17, 1990
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion is granted, the cross motion is denied, and the complaints are dismissed as time barred.
The record demonstrates that the decedent died on April 17, 1986, and that the plaintiff was appointed executrix of the decedent's estate on or about October 7, 1986, and guardian of the decedent's infant children on November 18, 1986. However, it is undisputed that the plaintiff did not commence an action against the defendant New York City Health and Hospitals Corporation (hereinafter the HHC) until on or about July 24, 1987, and only thereafter did she commence similar actions against the defendants Cece and Yen Chen. Accordingly, the instant actions were not commenced within the applicable 1-year-and-90-day limitations period set forth in McKinney's Unconsolidated Laws of N Y § 7401 (2) (see, Brennan v. City of New York, 59 N.Y.2d 791; Hammie v. City of New York, 143 A.D.2d 805; Martinez v. New York City Health Hosps. Corp., 137 A.D.2d 503; Brann v. City of New York, 100 A.D.2d 504). Contrary to the plaintiff's contention, the limitations period commenced running on the date of the decedent's death rather than on the date of her appointment as executrix or guardian (see, Brennan v. City of New York, supra; Bonilla v. Abbott, 113 A.D.2d 861), 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 (see, Ratka v. St. Francis Hosp., 44 N.Y.2d 604; Bonilla v. Abbott, supra; Cruz v. Mount Sinai Hosp., 61 A.D.2d 915). Similarly, the record fails to support the plaintiff's claim of estoppel. Accordingly, the Supreme Court should have dismissed this action as time barred. Kooper, J.P., Eiber, Sullivan and Balletta, JJ., concur.