Nori v. City of Yonkers

274 A.D. 545, 85 N.Y.S.2d 131, 1948 N.Y. App. Div. LEXIS 3125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1948
• Status: Published

Opinions

Johnston, J.

On July 29, 1947, Richard Nori, twenty years old, suffered injuries while playing ball on behalf of Lega Operaia Soc., Inc., on a public recreation field maintained by the City of Yonkers. He was hospitalized for nineteen days and was confined to his home for three weeks thereafter. A cast placed on his right foot was not removed until October 1, 1947. The Lega Operaia Soc., Inc., assured the infant that it would pay the expenses of the care and treatment of the injuries he suffered, on which promise he relied. In October, 1947, that corporation repudiated its promise to make such payment. Thereafter the infant consulted with his attorney and was advised that he had a cause of action against the City of Yonkers. On December 4, 1947, the infant’s father was appointed his guardian ad litem, and on the same day affidavits were verified in support of an application for an order for leave to serve a notice of claim pursuant to that portion of subdivision 5 of section 50-e of the General Municipal Law, which provides that ‘ ‘ Where the claimant is an infant, * * * and by reason of such disability fails to serve a notice of claim as provided in the foregoing subdivisions of this section within the time limited therefor, * # * the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one.” An order was entered granting the application, and the city appeals.

It is not claimed, nor may it be held, that the injuries suffered by the infant constituted physical incapacity by reason of which he failed to serve the notice of claim within the time required by section 50-e of the General Municipal Law.

Prior to the enactment of section 50-e of the General Municipal Law (L. 1945, ch. 694) the statutes requiring the filing of statements or notices of claim for personal injuries against municipalities within a prescribed period were held not to be Statutes of Limitation which were suspended during infancy. Infancy in and of itself did not prevent the operation of the requirement that the statement or notice be filed. However, the statutes were not construed as absolute and unyielding. (Winter v. City of Niagara Falls, 190 N. Y. 198.) Physical and mental inability to comply excused noncompliance. (Walden v. City of Jamestown, 178 N. Y. 213; Whiteside v. North Amer. Accident Ins. Co., 200 N. Y. 320, 323; Forsyth v. City of Oswego, 191 N. Y. 441, 444.) Where infants were involved, three periods of infancy were considered: “ As matter of law the strict requirements of the statute are not enforced against an immature infant of approximately ten years or less. They are enforced against an infant of riper years, of ordinary physical and mental capacity. Between these two periods lies a middle period where the infant may or may not be held to the provisions of the statute under the facts, of the case as the jury may determine.” (Russo v. City of New York, 258 N. Y. 344, 348.) Where the infant was eighteen or twenty years of age, and not unduly disabled by his injuries, the statutory requirements were strictly enforced. (Winter v. City of Niagara Falls, supra; Murphy v. Village of Fort Edward, 213 N. Y. 397.)

The purpose of the express provisions in the statute under consideration with respect to infancy as a disability in connection with notices of claim was to codify ‘ ‘ the decisional law of New York ”. (Tenth Annual Report of N. Y. Judicial Council, 1944, p. 269.) Although the language proposed in this connection by the Judicial Council was changed in several respects by the Legislature, the only purpose of the changes was to state in clearer statutory terminology what the law was as held in the cases above referred to. A comparison of the present statutory language with the language of the court in Murphy v. Village of Fort Edward (supra), particularly at pages 402-403, confirms that view.

The present statute requires, before the court may excuse late filing in the case of an infant, that the failure to serve the notice within the required time be by reason of the infancy. It is apparent from the moving affidavits in the case at bar that such failure was due, not to infancy, but to the promise of Lega Operaia Soc., Inc., that it would pay the expenses incurred in the care and treatment of the injuries suffered, which promise the society disavowed after the expiration of the statutory period.

Any other interpretation of the statute would violate the rules of statutory construction in two respects: (1) no effect would be given to the words “ by reason of such disability ” where the claimant is an infant; (2) although the statute gives the court discretion in granting leave to serve the notice of claim after the expiration of the statutory period, there would be no discretion left to the court even in a case where the claimant, as in the case at bar, is an infant “ of riper years ” and has the physical and mental capacity to comply with the statute; instead, the court would be required in such a case to grant leave if the application were made within one year after the accident.

The order should be reversed on the law and the facts, without costs, and the motion denied, without costs.