GIANNICOS v. BELLEVUE HOSPITAL

The record contains substantial support for the Special Referee's finding ( see RC 27th Ave. Realty Corp. v New York City Hous. Auth., 305 AD2d 135) that the incapacitated person is "unable to protect [his] legal rights because of an over-all inability to function in society" as a result of suffering a stroke, and was therefore entitled to the insanity toll of CPLR 208 ( McCarthy v Volkswagen of Am., 55 NY2d 543, 548). The toll did not terminate on the appointment of a guardian ( see Henry v City of New York, 94 NY2d 275; Costello v North Shore Univ. Hosp. Ctr. for Extended Care Rehabilitation, 273 AD2d 190). Leave to serve a late notice of claim was properly granted, notwithstanding plaintiff's failure to explain her delay, on a record establishing that defendants were not prejudiced by the delay ( see Matter of Dubowy v City of New York, 305 AD2d 320, 321; Weiss v City of New York, 237 AD2d 212, 213). We have considered defendants' other arguments and find them unavailing.

Reargument granted and, upon reargument, the decision and order of this Court entered on February 13, 2007 ( 37 AD3d 239) recalled and vacated and a new decision and order substituted therefor; leave to appeal to the Court of Appeals denied.