Opinion
June 28, 1967
Appeal by the defendant from so much of an order as permitted the claimant father to file a late notice of his derivative claim against the defendant. Special Term made no written decision of this matter and the issue here is whether or not the record shows any basis for the exercise of discretion in allowing such late filing under subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. This statute provides that the court may in its discretion allow a late filing of a notice of claim in three specific cases. The first two cases are inapplicable and the third provides as follows: "where the claimant fails to serve a notice of claim within the time limited for service of the notice by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative of the party against which the claim is made or of its insurance carrier." (Emphasis supplied.) The only affidavit in the record on the motion for permission to file late is that of the claimant father and there were no documents offered as exhibits. The affidavit sets forth various oral statements made by agents of the defendant and its insurance carrier but the only writing referred to therein is a written statement signed by the claimant father and the infant claimant at the request of the defendant's insurance carrier. The statute requires a written statement made by or on behalf of the defendant or its insurance carrier and therefore, a written statement made by or on behalf of the claimant does not provide an adequate basis for permission to file late. The claimant father, in his brief on this appeal, refers to a letter sent to the infant's physician by the defendant's insurance carrier, but this letter is not a part of the record on appeal and we are unable to consider what effect, if any, it might have in relation to the above-quoted section of the statute. We would note that the question of estoppel is not before us on this appeal, nor does there appear in this record any evidence to support its application. It seems undisputed that the representative of the insurance carrier notified the father within the statutory period of its intention not to pay the claim and gratuitously advised him to "consult an attorney". (See Triple Cities Constr. Co. v. Maryland Cas. Co., 4 N.Y.2d 443; Debes v. Monroe County Water Auth., 16 A.D.2d 381; Matter of Daley v. Greece Cent. School Dist. No. 1, 21 A.D.2d 976.) On the present record the likelihood of success appears negligible. Order modified, on the law and the facts, so as to delete so much thereof as permits Elwyn Withey, individually, to file late notice of claim for medical expenses and damages sustained by him as father of Douglas Withey, and, as so modified, affirmed, without costs. Motion by Elwyn Withey, individually, for permission to serve late notice of his derivative claim denied, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., concur in memorandum by Herlihy, J.