Opinion
March 24, 1958
Present — Nolan, P.J., Wenzel, Beldock, Murphy and Hallinan, JJ.
Appeal from so much of an order as granted leave, pursuant to subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law, to serve a notice of claim in behalf of an injured infant. Order insofar as appealed from unanimously affirmed, with $10 costs and disbursements. The infant was seven years of age. The school authorities were promptly notified of the accident, and her teacher, an appellant herein, took her to the school office. The infant was then taken to the school doctor and to a hospital. Therefore, there was no prejudice from the failure to file a timely notice of claim. The insurance carrier for the school district communicated with the infant's father. Forty-five days after the accident, the infant's parents retained attorneys who corresponded with the insurance carrier. A seven-year-old child does not have the mental capacity to protect her rights. In substantial degree the delay in filing was attributable to the fact of infancy, and there was a definite relationship between that fact and the failure to file within the 90-day statutory period. The Special Term properly exercised its discretion ( Natoli v. Board of Educ. of City of Norwich, 277 App. Div. 915, affd. 303 N.Y. 646; Matter of Hogan v. City of Cohoes, 279 App. Div. 282; Biancoviso v. City of New York, 285 App. Div. 320).