Griffin v. Torres

284 A.D. 1041, 135 N.Y.S.2d 820, 1954 N.Y. App. Div. LEXIS 4508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1954
• Status: Published

Opinion

Plaintiff has failed to assert any facts under which the court, pursuant to subdivision 5 of section 50-e of the General Municipal Law, could excuse her failure to serve a notice of claim for the wrongful death of her intestate within the statutory period. (See Mulligan V. City of New York, 273 App. Div. 152, 153.) The proposed cause of action for conscious pain and suffering accrued during the lifetime of the intestate, and as to this claim the court in its discretion may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in the statute. However, the application herein was not made until one day short of a year after the intestate’s death and more than ten months after the issuance of limited letters of administration. The explanation offered by plaintiff for her failure to comply with the statute does not meet the requirements necessary to invoke the favorable exercise of the court’s discretion. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. Present — Peck, P. J., Cohn, Callahan, Breitel and Botein, JJ.