Torres v. City of New York

50 A.D.2d 826, 376 N.Y.S.2d 6, 1975 N.Y. App. Div. LEXIS 11673

Opinion

— In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a late notice of claim against defendant City of New York, the city appeals from an order of the Supreme Court, Kings County, dated November 13, 1974, which granted the application. Order reversed, without costs, and motion denied. None of plaintiffs’ claimed disabilities are of the type necessary to permit late service of a notice of claim under subdivision 5 of section 50-e of the General Municipal Law (Matter of O’Neil v Manhattan & Bronx Surface Tr. Operating Auth., 23 AD2d 488). Plaintiff Mrs. Torres’ inability to speak English and the city’s knowledge of the potential claim are only factors which encourage an exercise of discretion to permit late service if one of the disabilities specified in subdivision 5 of the statute is also present (see, e.g., Matter of Bauer v City of New York, 33 AD2d 784; Matter of Gugliotto v City of New York, 10 AD2d 986, affd 9 NY2d 738). We do not pass upon the sufficiency of the notice of claim served in March, 1974 insofar as it pertains to the claim of malicious prosecution. Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.