MATTER OF BIBERIAS v. New York City Transit Auth.

New York Court of Appeals

MATTER OF BIBERIAS v. New York City Transit Auth.

265 N.E.2d 775, 27 N.Y.2d 890, 317 N.Y.S.2d 365, 1970 N.Y. LEXIS 985

DecidedNovember 19, 1970

StatusPublished

This text of 265 N.E.2d 775 (MATTER OF BIBERIAS v. New York City Transit Auth.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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MATTER OF BIBERIAS v. New York City Transit Auth., 265 N.E.2d 775, 27 N.Y.2d 890, 317 N.Y.S.2d 365, 1970 N.Y. LEXIS 985 (N.Y. 1970).

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Opinion

Memobandum. The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division pursuant to CPLR 5613 for determination of the questions of fact. (Bogle v. City of New York, 299 N. Y. 620; Cohen and Karger, Powers of the New York Court of Appeals, § 150, p. 595.) The record before us does not compel the conclusion that, as a matter of law, the disability of infancy was not a cause of the failure to file. In respect of applications of this nature, we have consistently affirmed the exercise of discretion upon proper proof; and in cases in which an attorney had been retained prior to the expiration of the period for filing, we have in some instances sustained the granting of permisson and in others have affirmed the denial thereof, as the particular record *892 warranted. (E.g., Matter of Shankman v. New York City Housing Auth., 16 N Y 2d 500, affg. 21 A D 2d 968; Natoli v. Board of Educ. of City of Norwich, 303 N. Y. 646, affg. 277 App. Div. 915; and see Biancoviso v. City of New York, 285 App. Div. 320, 325.)

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, with costs, and matter remitted to the Appellate Division for further proceedings in accordance with the memorandum herein.

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Memobandum. The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division pursuant to CPLR 5613 for determination of the questions of fact. (Bogle v. City of New York, 299 N. Y. 620; Cohen and Karger, Powers of the New York Court of Appeals, § 150, p. 595.) The record before us does not compel the conclusion that, as a matter of law, the disability of infancy was not a cause of the failure to file. In respect of applications of this nature, we have consistently affirmed the exercise of discretion upon proper proof; and in cases in which an attorney had been retained prior to the expiration of the period for filing, we have in some instances sustained the granting of permisson and in others have affirmed the denial thereof, as the particular record *892 warranted. (E.g., Matter of Shankman v. New York City Housing Auth., 16 N Y 2d 500, affg. 21 A D 2d 968; Natoli v. Board of Educ. of City of Norwich, 303 N. Y. 646, affg. 277 App. Div. 915; and see Biancoviso v. City of New York, 285 App. Div. 320, 325.)

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, with costs, and matter remitted to the Appellate Division for further proceedings in accordance with the memorandum herein.

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265 N.E.2d 775, 27 N.Y.2d 890, 317 N.Y.S.2d 365, 1970 N.Y. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-biberias-v-new-york-city-transit-auth-ny-1970.

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