Opinion
December 10, 1970
Appeal from the Onondaga Special Term.
Present — Del Vecchio, J.P., Witmer, Moule, Bastow and Henry, JJ.
Order insofar as appealed from unanimously reversed, with costs, and motion granted. Memorandum: In denying the infant's application for leave to file a late notice of claim Special Term stated it was constrained to follow the holdings in Matter of Borowski v. Town of Clarence ( 19 A.D.2d 580) and Staub v. City of New York ( 29 A.D.2d 756). We think these cases are distinguishable. In Borowski the infant was 19 years old and employed; in Staub he was 17 years old. In the present case the infant was 15 years old at the time of the accident, a student at a high school maintained by defendant and apparently resided in a family unit presided over by her parents. It is undisputed that defendant received prompt notice of the accident and that the principal of the school directed her parents to submit her medical bills to the district office. When defendant refused to pay the bills seven months after the accident, claimant's parents immediately retained an attorney for her, who promptly made the present application. While initially the failure to serve timely notice of claim may have been the fault of the parents, the error was also attributable to the disabilities and limitations incident to the infant's infancy. As the court said in Matter of Pandoliano v. New York City Tr. Auth. ( 17 A.D.2d 951): "It is indeed an unusual and extraordinary infant who, at the age of 15, has the mental capacity and acumen to assert promptly and properly all his legal rights, and to adequately protect such rights." (See, also, Matter of Smith v. Meadowbrook Hosp., 26 N.Y.2d 997; Kern v. Central Free School Dist. No. 4, 25 A.D.2d 867; Matter of Perry v. Board of Educ., 34 A.D.2d 1089; Biancoviso v. City of New York, 285 App. Div. 320.) We conclude that in the exercise of a proper discretion the requested relief should have been granted upon the ground that there is a "cognizable relation between the fact of infancy and the failure to file a claim within the statutory time limitation." ( Matter of Borowski v. Town of Clarence, supra.)