Lessman v. City of New York

6 Misc. 2d 671, 161 N.Y.S.2d 163, 1957 N.Y. Misc. LEXIS 3304

Opinion

Joseph A. Gavagah, J.

This is an application under section 50-e of the General Municipal Law for leave to file a late notice of claim in behalf of an infant six years of age. The claim arises out of injuries allegedly sustained by the infant on September 6,1956. The infant’s father, a survivor of European concentration camps and a recently naturalized citizen of the United States, asserts that his failure to file a timely notice of claim was caused by his ignorance of the law “ and a general attitude of timorousness engendered by his terrible past.” Neither the ignorance nor the fear of the applicant affords legal justification for this delay. However, it is well recognized that the rights of an immature infant shall not be forfeited because of the failure of some other party to act (Biancoviso v. City of New York, 285 App. Div. 320, 325). Where, as here, the delay in filing is reasonably attributable to the fact of infancy, the strict requirements of the statute should not be enforced against an infant six years of age (Russo v. City of New York, 258 N. Y. 344, 348). Under such circumstances, discretion dictates that this infant be allowed his day in court. The motion is accordingly granted. Settle order.