De Crescenzo v. City of New York

274 A.D. 889, 82 N.Y.S.2d 457, 1948 N.Y. App. Div. LEXIS 3910

Opinion

On April 25, 1946, respondent and her two infant children were injured when a truck owned by appellant struck them. Respondent did not serve a notice of claim within the time required by section 50-e of the General Municipal Law, which time expired June 24, 1946. On October 11, 1946, respondent served a notice of motion for an order granting leave to serve notices of claim within a reasonable time after the expiration of the statutory period. The appeal is from a resettled order granting the application. Resettled order modified on the law and the facts by striking therefrom the words “ and further notices of claim on behalf of the adults Samuel De Crescenzo and Antoinette De Crescenzo, against The City of New York ”. As so modified, the order is affirmed, without costs. There was no showing that respondent or her husband was so incapacitated within the sixty-day period following the accident that she or he was unable to serve a notice of claim sworn to by her or him or by someone on her or his behalf. Furthermore, the application was not - made within a reasonable time after the expiration of the period of respondent’s alleged disability relied upon as excusing the failure to serve the notice within the prescribed statutory period, and the delay in malting the njotion is not explained. Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.