Opinion
May 11, 1971
Order, Supreme Court, New York County, entered September 30, 1969, herein appealed from, unanimously reversed, on the law and on the facts, without costs and without disbursements, and the plaintiff's motion to file and serve an amended notice of claim to be dated January 7, 1969, is denied. It does not appear that the notice of claim was timely served (General Municipal Law, § 50-e) nor that the late filing was occasioned by any condition which, under the statute, permits an exception in the exercise of the discretion of the court (General Municipal Law § 50-e, subd. 5). Service of a late notice without leave of the court was not a statutory compliance, and neither the demand for a physical examination, nor the granting of a motion to amend nunc pro tunc, as was done here, could give the notice viability (cf. Chikara v. City of New York, 10 A.D.2d 862, app. dis. 8 N.Y.2d 1014).
Concur — Stevens, P.J., Capozzoli, Nunez, Kupferman and Steuer, JJ.