                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     518890
________________________________

MICHAEL LYNCH,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

WILLIAM CARLOZZI JR.,
                    Appellant.
________________________________


Calendar Date:   April 30, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                             __________


      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Jessica A. Desany of counsel), for appellant.

      O'Connell & Aronowitz, PC, Albany (Stephen R. Coffey of
counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order and an amended order of the Supreme
Court (Krogmann, J.), entered February 19, 2014 and April 4, 2014
in Warren County, which, among other things, denied defendant's
motion for summary judgment dismissing the complaint.

      Plaintiff sustained a brain injury in August 1991 when,
while a pedestrian, he was struck by a vehicle operated by
defendant. A few months later, in November 1991, plaintiff met
with an insurance adjuster and executed a release in exchange for
$5,000. However, he commenced this personal injury action in
September 1999. Defendant moved for summary judgment dismissing
the action asserting as defenses both the release and the statute
of limitations. Supreme Court (Moynihan Jr., J.) granted the
motion, but this Court reversed finding triable issues as to
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whether plaintiff lacked capacity to execute the release and
suffered from a mental disability sufficient to toll the statute
of limitations (284 AD2d 865 [2001]). Following a series of
protracted delays, a hearing was conducted in 2011 that included,
among other things, testimony by several experts and the
introduction of voluminous records regarding plaintiff. A motion
to limit certain expert testimony and a dispute regarding the
admissibility of some of plaintiff's records resulted in an
appeal, which we dismissed (121 AD3d 1308 [2014]). In 2014,
Supreme Court (Krogmann, J.) denied defendant's motion for
summary judgment, holding that plaintiff had established that he
lacked capacity to execute the release and suffered from a mental
disability sufficient to toll the statute of limitations.
Defendant appeals.

      With respect to the release signed by plaintiff, "the
burden of proving incompetence rests upon the party asserting
incapacity to enter into an agreement [and], to prevail,
plaintiff was required to establish that [his] 'mind was so
affected as to render [him] wholly and absolutely incompetent to
comprehend and understand the nature of the transaction'" (Adsit
v Wal-Mart Stores, Inc., 79 AD3d 1168, 1169 [2010] [internal
citation omitted], quoting Sears v First Pioneer Farm Credit,
ACA, 46 AD3d 1282, 1284 [2007]; see Zurenda v Zurenda, 85 AD3d
1283, 1284 [2011]). The incapacity must be shown to exist at the
time the pertinent document was executed (see Adsit v Wal-Mart
Stores, Inc., 79 AD3d at 1169). Regarding the statute of
limitations issue, the toll for "insanity" provided by CPLR 208
is narrowly interpreted, the concept of insanity is "equated with
unsoundness of mind" (Eisenbach v Metropolitan Transp. Auth., 62
NY2d 973, 975 [1984]) and encompasses "only those individuals who
are unable to protect their legal rights because of an over-all
inability to function in society" (McCarthy v Volkswagen of Am.,
55 NY2d 543, 548 [1982]). The mental incapacity must exist at or
be caused by the accident and continue during the relevant time
(see Rosenfeld v Schlecker, 5 AD3d 461, 461-462 [2004]; Seppala v
Meadowbrook Care Ctr., 292 AD2d 368, 369 [2002]). Where, as
here, we are reviewing a determination following a nonjury
hearing, we have "broad authority . . . to independently weigh
the evidence and render a determination warranted by the record,
[but] we will defer to the trial court's assessment of
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credibility issues" (Matter of Curtis, 83 AD3d 1182, 1183 [2011]
[internal quotation marks, brackets and citations omitted]; see
Matter of Moak, 92 AD3d 1040, 1043 [2012], lv denied 19 NY3d 812
[2012]; Feiden v Feiden, 151 AD2d 889, 891 [1989]).

      Evidence in the record established that, following the
accident, plaintiff was hospitalized in a coma and remained in
such condition for about two weeks. After approximately a month
in the hospital, he was transferred to a facility for head injury
rehabilitation. He remained there until late October 1991 and
discharged himself against medical advice from that facility,
where records indicate that he had severe impairments. Although
he had not been hospitalized before the 1991 accident for mental
health problems, following the accident and through 1999,
plaintiff, as detailed by Supreme Court, had some 20 psychiatric-
related hospitalizations. The voluminous records reflect ongoing
significant problems, as well as repeated bizarre conduct by
plaintiff ranging from, among other things, believing that $400
million was going to be delivered to him to stating that the FBI
and CIA were after him. Plaintiff also had a series of arrests
during the relevant years when not hospitalized.

      Plaintiff presented testimony from two experts, Stephen
Price and Harry Camperlengo, both board certified psychiatrists
who had examined plaintiff and reviewed his extensive medical
records. Price opined that, when plaintiff left the
rehabilitation facility in October 1991 against doctors' advice,
he was unable to function at a level to understand and protect
his legal rights. Price further stated that thereafter, and for
a period that extended to 1999, plaintiff's condition continued
to deteriorate. Camperlengo explained that plaintiff suffered a
severe brain injury. Based upon his evaluation of plaintiff and
review of plaintiff's records, Camperlengo opined that, during
the periods when plaintiff was not in a hospital, mental health
clinic or jail, he would not have been able to protect his legal
rights or function in society.

      Defendant presented evidence that conflicted with
plaintiff's proof, including, among other things, expert
testimony from licensed psychologist Robert McCaffrey. McCaffrey
attributed plaintiff's declining condition to chronic alcoholism
                              -4-                518890

rather than his traumatic brain injury. Although McCaffrey
acknowledged that during some relevant times plaintiff was
incapacitated, he opined that, for much of the pertinent period,
plaintiff was able to sufficiently function.

      Conflicting proof was presented on key issues and Supreme
Court credited the evidence supportive of plaintiff's position.
We discern no reason to disregard those credibility
determinations. Accepting such determinations, there is
sufficient proof in the record to support Supreme Court's
findings that plaintiff satisfied his burden of proving that he
lacked capacity to execute the release in November 1991 and that
he suffered an ongoing mental disability sufficient to toll the
statute of limitations during the relevant period. Accordingly,
we will not disturb Supreme Court's ruling.

      Finally, defendant also asserts as grounds for reversal the
alleged evidentiary errors that were the subject of the
previously dismissed appeal (121 AD3d 1308). Regarding
defendant's motion to limit certain expert proof, "[i]t is
axiomatic that 'Supreme Court is vested with broad discretion in
addressing expert disclosure issues'" (Mary Imogene Bassett Hosp.
v Cannon Design, Inc., 97 AD3d 1030, 1031 [2012], quoting Gross v
Sandow, 5 AD3d 901, 902 [2004], lv dismissed and denied 3 NY3d
735 [2004]), and we are unpersuaded that Supreme Court abused its
discretion. Further, as for defendant's argument about the
admission of plaintiff's Social Security Administration records,
we do not find reversible error under the circumstances of this
hearing.

     Garry, Egan Jr. and Rose, JJ., concur.
                              -5-                  518890

      ORDERED that the order and amended order are affirmed, with
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
