Tashjian v. Central School District No. 5

38 A.D.2d 1006, 329 N.Y.S.2d 982, 1972 N.Y. App. Div. LEXIS 5132

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1972
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered October 29, 1971 in Albany County, which granted leave to the infant petitioner and his father to file a late notice of claim. Allegedly, on June 10, 1970, the infant, aged 8, was struck in his face by a bat wielded by a fellow student on appellant’s school premises. The boy’s mother was notified on that day by the school nurse and a doctor who examined him reported that the boy would be all right. Starting about a month thereafter, the child experienced epileptic seizures. The instant application was made within one year, as prescribed by statute (General Municipal Law, § 50-e), appellant had actual notice immediately following the incident and Special Term did not abuse its discretion in allowing a claim to be filed late on behalf of the infant (cf. Chao v. Westhill Cent. School Dist., 35 A D 2d 1071; Matter of Brooks v. Rensselaer County, 34 A D 2d 708). The claim of the adult parent arising out of injuries sustained by his infant child is not embraced within the provision for extension of time for serving notice of claim on the ground of infancy (Biancoviso v. City of New York, 285 App. Div. 320, 325; cf. Kratz v. Dussault, 33 A D 2d 826) and there has been no showing justifying an extension for the adult (cf. Matter of McAllister v. New York City Housing Auth., 21 A D 2d 660). Order modified, on the law, to the extent of denying leave to the adult Jack Tashjian, individually, to file a late notice of claim and, as so modified, affirmed, without costs. Herlihy, P. J., Greenblott, Cooke, Sweeney and Reynolds, JJ., concur.