De Stefano v. City of New York

Appellate Division of the Supreme Court of New York

De Stefano v. City of New York

285 A.D. 1042, 140 N.Y.S.2d 20, 1955 N.Y. App. Div. LEXIS 6600

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 1955

StatusPublished

Cited by4 cases

This text of 285 A.D. 1042 (De Stefano v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Stefano v. City of New York, 285 A.D. 1042, 140 N.Y.S.2d 20, 1955 N.Y. App. Div. LEXIS 6600 (N.Y. Ct. App. 1955).

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Opinion

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The physical disability of the [1043]*1043claimant was not such as to excuse his failure to serve a notice of claim within the time limited therefor. It appears that the claimant conferred with his attorney several times during the period of ninety days following the happening of the alleged accident. The statute (General Municipal Law, § 50-e, subd. 2) requires that the notice shall set forth, among other things, the nature of the claim and the time and place where it arose. Provision is further made in subdivision 6 of the same section for amendment of the notice. It appears that claimant and his attorney were in possession of sufficient facts to file a notice of claim in compliance with the statute. The discretion of the court to permit late service of a notice of claim may only be exercised in a case such as this where it appears that the claimant is “ physically incapacitated, and by reason of such disability fails to serve a notice of claim ” (General Municipal Law, § 50-e, subd. 5). We have recently said that “ The power to be exercised under the carefully chosen words of the Legislature has been rigidly and exactly construed.” (Matter of White v. City of New York, 285 App. Div. 69.) Present — Peck, P. J., Cohn, Breitel, Bastow and Rabin, JJ.

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Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The physical disability of the [1043]*1043claimant was not such as to excuse his failure to serve a notice of claim within the time limited therefor. It appears that the claimant conferred with his attorney several times during the period of ninety days following the happening of the alleged accident. The statute (General Municipal Law, § 50-e, subd. 2) requires that the notice shall set forth, among other things, the nature of the claim and the time and place where it arose. Provision is further made in subdivision 6 of the same section for amendment of the notice. It appears that claimant and his attorney were in possession of sufficient facts to file a notice of claim in compliance with the statute. The discretion of the court to permit late service of a notice of claim may only be exercised in a case such as this where it appears that the claimant is “ physically incapacitated, and by reason of such disability fails to serve a notice of claim ” (General Municipal Law, § 50-e, subd. 5). We have recently said that “ The power to be exercised under the carefully chosen words of the Legislature has been rigidly and exactly construed.” (Matter of White v. City of New York, 285 App. Div. 69.) Present — Peck, P. J., Cohn, Breitel, Bastow and Rabin, JJ.

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Bluebook (online)

285 A.D. 1042, 140 N.Y.S.2d 20, 1955 N.Y. App. Div. LEXIS 6600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-stefano-v-city-of-new-york-nyappdiv-1955.

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