From Casetext: Smarter Legal Research

Matter of Defelice v. Board of Educ. of City

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 1971
37 A.D.2d 930 (N.Y. App. Div. 1971)

Opinion

November 4, 1971


Order, Supreme Court, Bronx County, entered on January 7, 1971, in so far as appealed from, unanimously reversed, on the law, without costs and without disbursements, and the application denied. The application is to allow the service of a notice of claim after the expiration of the statutory period in an action for personal injuries by an infant and in his father's derivative action for loss of services. Special Term granted the application. Defendant's appeal is limited to the father's action. Aside from infancy, the only grounds for allowing a late filing are mental or physical incapacity (General Municipal Law, § 50-e, subd. 5). Inability to speak English is not physical incapacity ( Matter of Gugliotto v. City of New York, 10 A.D.2d 986, affd. 9 N.Y.2d 738). Nor does the exception of infancy in the infant's action accrue to the benefit of the father in 2d 943; Matter of McAllister v. New York City Housing Auth., 21 A.D.2d the derivative action ( Jefferson v. New York City Housing Auth., 24 A D 660). There is no general discretion vested in the court aside from the statutory exceptions whether or not prejudice is shown.

Concur — Stevens, P.J., Capozzoli, McGivern, Steuer and Tilzer, JJ.


Summaries of

Matter of Defelice v. Board of Educ. of City

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 1971
37 A.D.2d 930 (N.Y. App. Div. 1971)
Case details for

Matter of Defelice v. Board of Educ. of City

Case Details

Full title:In the Matter of GABRIEL DEFELICE, an Infant, by GIOVANNI DEFELICE, His…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 4, 1971

Citations

37 A.D.2d 930 (N.Y. App. Div. 1971)

Citing Cases

Manfredonio v. New York City Health & Hospitals Corp.

Respondents contend that the petitioner parent cannot rely upon the infancy of the daughter in support of an…

Charalambakis v. City of New York

We do not agree, however, that the discretion which may be exercised by the court because of the injured…