Opinion
January 12, 1961
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order insofar as it grants the motion of Joan A. Liegl, individually, unanimously reversed, without costs of this appeal to either party, and motion denied, without prejudice to the right of said Joan A. Liegl, individually, to reapply upon a showing that the failure to serve her notice of claim within the appropriate time was caused by her mental or physical incapacity; order insofar as it grants the motion as to Ann Marie Liegl, by her guardian ad litem, unanimously affirmed, without costs. Memorandum: The affidavits of Joan A. Liegl state, in a conclusory way, that she was ill during the 90-day period, within which she should have given notice of her claim. Section 50-e Gen. Mun. of the General Municipal Law requires, for an extension, a showing of mental or physical incapacity which caused the failure to serve the notice within the specified time. There is nothing stated as to the nature of the alleged incapacity or why it was responsible for her failure. No medical affidavits were submitted to show the extent of the alleged physical or mental disability. Apparently she was obliged to see her doctor once every three weeks, later once a week, and finally was hospitalized for the last few days, all during the statutory 90-day filing period. She also states that she was unemployed and in dire distress as far as finances were concerned. She alleges certain duties and obligations in relation to her injured daughter. She may have been distressed, ill, in need, and occupied, but the papers fall far short of showing mental or physical incapacity to file during the period in question. However, it may be, that upon a further application, a legal excuse may be presented. She should have this opportunity.