O'Rourke v. Westchester County Playland Commission

283 A.D. 874, 129 N.Y.S.2d 196, 1954 N.Y. App. Div. LEXIS 5630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1954
• Status: Published

Opinion

Application on behalf of an infant for leave to serve a notice of claim pursuant to subdivision 5 of section 50-e of the General Municipal Law, after the expiration of the ninety-day period fixed therein. The claim is for personal injuries alleged to have been sustained as the result of appellants’ negligence. Within a month after the happening of the accident the County Attorney, who is attorney for the appellants, was served with notice of claim in accordance with the explicit provisions of the Westchester County Playland Commission Act (L. 1941, ch. 777, § 4, subd. 20 ; § 10). Immediately upon discovery by respondent’s attorneys that the foregoing provisions were superseded by the provisions of section 50-e of the General Municipal Law (L. 1945, ch. 694, § 13), and in April, 1953, the application was made for leave to serve the notice of claim on appellants. The appeals are from an order dated May 8, 1953, granting respondent’s application and from so much of an order dated June 19, 1953, on reargument, as adhered to the original determination. Order on reargument, insofar as appealed from, affirmed, with $10 costs and disbursements. In the light of the infant’s tender age, the prompt notification of the appellants through their attorney, and the misleading and conflicting statutes, there was no improvident exercise of discretion in the granting of the application. Appeal from original order dismissed, without costs. Adel, Acting P. J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur,