Opinion
February 25, 1946.
Herbert G. Kreisberg for petitioner.
John J. Bennett, Corporation Counsel ( J. Tufton Mason of counsel), for respondent.
This is an application pursuant to the provisions of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law, for an order permitting the service of a notice of claim upon the City of New York.
The sixty days within which the notice of claim was required to be filed expired on October 10, 1945. The applicant is over sixty-nine years old and states that, due to the accident he suffered, he was incapacitated from the injury received and resultant shock for a period of about seven weeks. A doctor's certificate attached to the papers herein states that the applicant was totally disabled for about six and one-half weeks. The applicant deposes that immediately following his recovery from the more serious effects of the accident he developed a cold which ultimately resulted in "grippe or influenza", for which ailment he treated himself. Due to all of the aforesaid the applicant was not able physically to attend at his attorney's office until late in the month of January, 1946.
Subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law provides, in part: "Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim as provided in the foregoing subdivisions of this section within the time limited therefor, * * * the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one."
The court believes that the situation disclosed by the papers submitted herein is one in which its discretion should be exercised in favor of the granting of the application. It is clearly apparent that the applicant was physically unable to attend to the filing of a notice of claim within the statutory time limit. Moreover, no showing is made herein that the City of New York will be prejudiced in any way by the granting of this application.
The application is granted. Settle order, granting leave to serve a notice of claim within twenty days from date of publication of this memorandum.