Trakis v. City of New York

92 A.D.2d 569, 459 N.Y.S.2d 322, 1983 N.Y. App. Div. LEXIS 16800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1983
• Status: Published

Opinion

In a proceeding for leave to serve a late notice of claim, claimant James Trakis appeals from so much of an order of the Supreme Court, Queens County (Lonschein, J.), entered May 5,1981, as denied the application as to him. By order dated February 16, 1982, this court reversed the order insofar as appealed from, on the law, and granted the application as to claimant James Trakis (Trakis v City of New York, 86 AD2d 868). On June 23, 1982, the Court of Appeals reversed the order of this court and remitted the matter to this court for “further consideration on the facts and in the exercise of discretion” (56 NY2d 1018,1019). Upon remittitur, order reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and application granted as to claimant James Trakis. The notice of claim verified and served on February 17, 1981, is deemed to have been timely served on behalf of. James Trakis. Upon our review of the facts, and in the exercise of discretion, we conclude that the application made by claimant James Trakis, approximately 10 months after the accident, should have been granted. We particularly note the following: (1) the injured claimant was 86 years old when the accident occurred; (2) his orthopedist deposed that his arteriosclerotic condition substantially impaired his memory; (3) the serious injury (a fractured femur) required substantial hospital and nursing home care, followed by an extensive period at home which he would leave only once a month for treatment; (4) the respondent had actual notice of the accident from the police and emergency clinic reports; and (5) the respondent has not shown substantial prejudice. Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.