McGrath v. Board of Education

63 A.D.2d 1046, 405 N.Y.S.2d 798, 1978 N.Y. App. Div. LEXIS 12145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1978
• Status: Published

Opinion

Cross appeals from a judgment of the Supreme Court at Special Term, entered August 17, 1977 in Albany County, which granted an application for permission to serve a late notice of claim on behalf of the infant and denied a similar application on behalf of the infant’s mother. Section 50-e of the General Municipal Law was amended by legislation, effective September 1, 1976 (L 1976, ch 745). By order to show cause dated October 1, 1976, claimant sought permission to file a late noticp of claim against the defendant school district based on injuries sustained by her infant son in a fall on school premises on October 7, 1974. Since the one-year time period formerly provided for making such an application pursuant to section 50-e had already expired by September 1, 1976, the amendment of that statute cannot be retroactively applied to revive the infant’s claim. Accordingly, Special Term erroneously granted permission for the filing of a late notice of claim on his behalf (Matter of Beary v City of Rye, 44 NY2d 398). However, as to the derivative claim of the infant’s mother, Special Term correctly ruled that permission should be denied for, under either version of the statute, that claim was plainly time-barred (General Municipal Law, § 50-i). Judgment modified, on the law, by reversing so much thereof as granted permission to file a late notice of claim on behalf of the infant claimant; motion denied, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Larkin, JJ., concur.