MEMORANDUM-DECISION AND ORDER

BRENDA K. SANNES, District Judge.

I. BACKGROUND

Rochelle Brooks filed this action on behalf of her daughter F.B. under 42 U.S.C. § 405(g) seeking review of the Commissioner of Social Security's denial of her application for Supplemental Security Income Benefits for F.B. (Dkt. No. 1). The Commissioner filed a motion under Rules 12(b)(1) and 12(b)(6), asserting that the Complaint must be dismissed because it was untimely. (Dkt. No. 11). This matter was referred to United States Magistrate Judge Christian F. Hummel for a Report-Recommendation. (Dkt. No. 3); Local Rule 73.2(d). On June 15, 2016, after reviewing the parties' motion papers, (Dkt. Nos. 11, 14, 16), Magistrate Judge Hummel issued a Report-Recommendation ("Report I"), recommending that the Commissioner's motion to dismiss be granted. (Dkt. No. 17, at 9). Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1), they had "14 days within which to file written objections" to the Report-Recommendation and that "failure to object to th[e] report within 14 days will preclude appellate review." (Id.) (citing Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e)). Plaintiff filed objections to Report I on June 28, 2016, (Dkt. No. 18), and the Commissioner has filed a response to those objections, (Dkt. No. 19).

On November 9, 2016, the undersigned referred this matter to Magistrate Judge Hummel for an inquiry and recommendation as to whether Brooks, "a non-attorney parent who brings this action on behalf of her child, `has a sufficient interest in the case and meets basic standards of competence' to bring this action `without representation by an attorney.'" (Dkt. No. 21) (quoting Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002)). On January 23, 2017, Magistrate Judge Hummel conducted a hearing and on April 19, 2017, issued a Report-Recommendation ("Report II"), recommending that pro bono counsel be appointed to represent F.B. in this matter. (Dkt. No. 28). The Court adopted the Report II in its entirety, appointed counsel, and extended the time for filing objections to Report I. (Dkt. Nos. 30, 31, 49, 50, 52, 53). On August 1, 2017 and January 17, 2018, Plaintiff filed a second set of objections and supplemental objections1 to Report I, (Dkt. No. 37, 38, 56), and the Commissioner filed a second response. (Dkt. No. 48). For the reasons discussed below, Report I is rejected and Defendant's motion to dismiss is denied.

II. STANDARD OF REVIEW

The Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.

III. DISCUSSION

Magistrate Judge Hummel recommended that the Complaint be dismissed because it was filed one day past the 60-day statute of limitations and Plaintiff had failed to show that the doctrine of equitable tolling was applicable. (Dkt. No. 17, at 9). Plaintiff has objected to that recommendation. (Dkt. Nos. 18, 37, 56). After a de novo review, the Court finds that Magistrate Judge Hummel thoroughly set forth the relevant facts concerning the timing of the SSA's issuance of the Appeals Council decision and Plaintiff's filing of the Complaint, as well as the applicable law governing the timeliness of a complaint under 42 U.S.C. § 405(g) and the doctrine of equitable tolling. Furthermore, the Court agrees with Magistrate Judge Hummel's determination that the Complaint, which Plaintiff filed on February 9, 2016, was filed 61 days after receiving the Appeals Council's denial of review, and thus was one day late. (Dkt. No. 17, at 5). However, in view of Plaintiff's objections, which she filed with the benefit of counsel and which contain factual averments that were not presented to Magistrate Judge Hummel, the Court concludes that, under the doctrine of equitable tolling, the Complaint may be timely and an evidentiary hearing is warranted.

"The sixty-day time limit is not jurisdictional, but rather a statute of limitations." Kesoglides v. Comm'r of Soc. Sec., No. 113-CV-4724 PKC, 2015 WL 1439862, at *2, 2015 U.S. Dist. LEXIS 39921, at *6 (E.D.N.Y. Mar. 27, 2015) (citing Bowen v. City of New York, 476 U.S. 467, 478 (1986)). The limitations period, however, is "a condition on the waiver of sovereign immunity and thus must be strictly construed." Bowen, 476 U.S. at 479. "Statute of limitations defenses are affirmative defenses, which normally cannot be decided on a motion to dismiss." In re S. African Apartheid Litig., 617 F.Supp.2d 228, 287 (S.D.N.Y. 2009). "However, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading." Id. (internal quotation marks omitted). As a statute of limitations, the sixty-day time period is subject to equitable tolling. Bowen, 476 U.S. at 480-82.

"[T]he doctrine of equitable tolling permits courts to deem filings timely where a litigant can show that `[s]he has been pursuing h[er] rights diligently' and that `some extraordinary circumstance stood in h[er] way.'" Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Brooks asserts that she has been diligent in pursuing this action and states that, upon receiving the Appeals Council's denial, she contacted the SSA and participated in telephone conferences with the SSA on January 9 and 23, 2015. (Dkt. No. 56-1, at 2). Additionally, during that time period, Brooks contacted a legal services agency to try to obtain representation for her daughter. (Id. at 4). Brooks further asserts that she can show extraordinary circumstances prevented her from filing the Complaint on time. (Dkt. No. 56-1, at 6). She avers that during the period following her receipt of the Appeals Council's denial, the residence where she and F.B. lived "was deemed unfit for human habitation due to inadequate heat" and they had "to seek out new shelter," (Dkt. No. 38, ¶ 5), and that she was "experiencing [her] own health issues related to a large brain tumor/lesion that was subsequently removed in November 2015." (Dkt. No. 38, ¶ 7).

If Brooks' assertions are credited, they may well be sufficient to establish that she was diligently pursuing her daughter's rights from the time she received the Appeals Council's denial, but that she was prevented from timely filing the instant Complaint by an untenable living situation that required moving her family and because of her own serious health issues. See Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) ("Equitable tolling is generally considered appropriate . . . where a plaintiff's medical condition or mental impairment prevented her from proceeding in a timely fashion."); Rodriguez v. Barnhart, No. 01-cv-3411, 2002 WL 31875406, at *6, 2002 U.S. Dist. LEXIS 24664, at *21 (S.D.N.Y. Dec. 24, 2002) ("Ms. Rodriguez has offered sufficient evidence to create issues of fact concerning the scope of her incapacity, its effect on her ability to pursue court-based remedies, and the extent of her efforts to comply with the instructions that she received from the Appeals Council."). As the Commissioner has indicated that she has "has numerous responses to Plaintiff's objections and the new evidence and arguments submitted," and seeks additional time to respond, (Dkt. No. 45, at 5), the Court concludes that an evidentiary hearing is warranted.2 See Torres, 417 F.3d at 280 (concluding that the averments in the sworn affidavit that the Social Security claimant submitted in response to the Commissioner's motion to dismiss "state[d] at least enough to warrant an evidentiary hearing into whether equitable tolling should be invoked"). Accordingly, the Court rejects Report I, denies the motion to dismiss, and will schedule an evidentiary hearing on the applicability of the equitable tolling doctrine.

IV. CONCLUSION

For these reasons, it is

ORDERED that the Report-Recommendation (Dkt. No. 17) is rejected; and it is further

ORDERED that the Commissioner's motion to dismiss (Dkt. No. 11) is denied.

IT IS SO ORDERED.