Jagacki v. Board of Education

34 A.D.2d 957, 312 N.Y.S.2d 226, 1970 N.Y. App. Div. LEXIS 4641

Opinion

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a notice of claim, the appeal is from an order of the Supreme Court, ÍKings County, dated April 2, 1969, which granted the application. Order reversed, on the law and the facts, with $10 costs and disbursements, and application denied. Whether or not the initial failure to file a notice of claim within the prescribed 90-day period is legally attributable to the infant respondent’s disabiltiy, it is apparent upon this record that the application for leave to file a late claim was not, as a matter of law, made “ within a reasonable time after the expiration of the * * *. [said 90-day period] ” (General Municipal Law, § 50-e, subd. 5). There appears to have been an unexplained subsequent delay of at least three months between retention of counsel for purposes of applying for such leave and actual application to the court (cf. Matter of McEwan v. City of New York, 279 App. Div. 802, affd. 304 N. Y. 628). Christ, P. J., Hopkins, Kleinfeld, Brennan and Benjamin, JJ., concur.