Klee ex rel. Klee v. Board of Cooperative Educational Services

25 A.D.2d 715, 270 N.Y.S.2d 230, 1966 N.Y. App. Div. LEXIS 4630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1966
• Status: Published

Opinion

Order unanimously reversed, with costs, and motion granted. Memorandum: The record discloses a “ cognizable relation between the fact of infancy and the failure to file a claim within the statutory time, limitation ” (Matter of Borowski v. Town of Clarence, 19 A D 2d 580). While the infant was 18 years old at the time of the accident, he is severely mentally retarded and apparently has a mental age of about five years or less. Some of the delay may have been due to the negligence or dilatory tactics of his former attorneys. This delay in the light of the infant’s mental condition is not necessarily controlling. Basically such error was also attributable, whether in a greater or lesser degree, to the disabilities and limitations of this infant (Matter of Esslie v. Central School Dist. No. 1, 20 A D 2d 748; Matter of Pandoliano v. New York City Tr. Auth., 17 A D 2d 951). Under the circumstances in this particular ease, permission to serve the notice of claim annexed to the moving papers should be granted. (Appeal from order of Erie Special Term denying plain tiff’s motion for leave to serve a notice of claim on defendants.)

Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.