Matter of Brigade v Olatoye

Matter of Brigade v Olatoye 2018 NY Slip Op 08437 Decided on December 11, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 11, 2018
Sweeny, J.P., Renwick, Mazzarelli, Oing, Moulton, JJ.
7843 102179/15

[*1]In re Elba Brigade, Petitioner-Appellant,

v

Shola Olatoye, etc., et al., Respondents-Respondents.

Adriene Holder, The Legal Aid Society, Brooklyn (Perry McCall of counsel), for appellant.

Kelly D. MacNeal, New York City Housing Authority, New York (Andrew M. Lupin of counsel), for respondents.

Judgment, Supreme Court, New York County (Margaret A. Chan, J.), entered May 24, 2017, denying the petition to annul respondent New York City Housing Authority's determination, dated March 12, 2014, which terminated petitioner's tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for a hearing to determine whether petitioner's mental condition entitles her to a tolling of the statute of limitations.

The medical records submitted on the petition present an issue of fact as to whether petitioner possessed "an over-all ability to function" during the relevant period (see McCarthy v Volkswagen of Am. , 55 NY2d 543, 548 [1982]). Thus, a hearing must be held to determine whether the statute of limitations on this untimely filed proceeding should be tolled for insanity (CPLR 208; see Santana v Union Hosp. of Bronx , 300 AD2d 56, 58 [1st Dept 2002]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2018

CLERK