Blank v. City of New York

273 A.D. 812, 75 N.Y.S.2d 839, 1948 N.Y. App. Div. LEXIS 4751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1948
• Status: Published

Opinion

On December 2, 1946, respondent was injured when a bus owned and operated by appellant, in which he was a passenger, collided with an automobile. Respondent did not serve a notice of claim within the time required by section 50-e of the General Municipal Law, which time expired January 31, 1947. On April 15, 1947, respondent moved at Special Term for an order granting leave to serve a proposed notice of claim within a reasonable time, alleging that he had been unable by reason of physical incapacity to serve the notice in time. The appeal is from an order granting the application. Order reversed on the law and the facts, without costs, and the motion denied, without costs. There was not a showing of physical incapacity within the meaning of the statute, nor was there a showing that the failure to serve the notice of claim within the statutory period resulted from the disability. (Matter of Auricchio V. City of New York, 272 App. Div. 1067’.) Furthermore, the application was not made within a reasonable time after the expiration of the period of disability relied upon as excusing the failure to serve the notice within the prescribed statutory period, and respondent’s excuse for the delay is insufficient. (Matter of Buskin v. City of New York, 271 App. Div. 934.) Lewis, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.