Opinion
November 16, 1955.
Present — McCurn, P.J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Order reversed on the facts, without costs of this appeal to any party, and motion denied, without costs. Memorandum: Section 50-e Gen. Mun. of the General Municipal Law requires that in actions against a municipality founded on tort, "notice of claim * * * shall be given within ninety days after the claim arises (subd. 1)". The same section authorizes the court, in its discretion, to permit service of such notice "within a reasonable time" following the expiration of the ninety-day period (subd. 5). Notices of claims not having been served within the required time, claimants, both adults, moved at Special Term for leave to serve the required notices. The motion was granted, and the city appeals. "The circumstances which allow the exercise of judicial discretion to permit a late filing of the notice are precisely prescribed by the statute in terms which seem to permit the exercise of the discretionary power only when the statutory conditions are shown to exist. No area of general discretion seems admissible within this language." ( Matter of White v. City of New York, 285 App. Div. 69, 70.) It is only in those instances where the claimant is an infant, or is mentally or physically incapacitated, and by reason thereof fails to serve the notice within the statutory period, that the court may grant leave for late service of notice of claim. The injuries for which the claimant, Frances Menzel, seeks leave to serve a notice of claim consist of a broken arm. In our opinion such disability has no relationship to the failure to serve her notice of claim within the time required by section 50-e Gen. Mun. of the General Municipal Law. Respondents do not oppose reversal of the order insofar as it permits the claimant, John L. Menzel, to file notice of claim after the statutory period of ninety days.
The claimant, Frances Menzel, was injured on December 22, 1954. The ninety-day period in which to file the notice of claim pursuant to section 50-e Gen. Mun. of the General Municipal Law expired March 22, 1955. The notice of motion for leave to file a late claim was served on May 18, 1955. Her injury consisted of a "severely comminuted fracture of the upper third of the right ulna with a fracture dislocation of the proximal end of the radius." The fractured ulna was reduced and fixed into position with a metal plate and screws. Surgery on the fractured radius was deferred until April 7, 1955, because of the necessity to await a union between the fragments of the ulna. She was confined to the hospital from December 22, 1954, until December 28, 1954, and from April 7, 1955, until April 12, 1955. Her physician states that she was totally disabled from December 22, 1954, until April 26, 1955. There can be no question that she was physically incapacitated. The question is whether or not her failure to file a notice of claim within the ninety-day period, was by reason of such disability within the purview of the statute. As we read the statute, it does not limit the exercise of the court's discretion to situations where the claimant's incapacity has rendered it impossible for her to serve the notice of claim within the ninety-day period. The statute reads: "5 Where the claimant is * * * mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim * * * within the time limited therefor * * * the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one." As we read the statute, the court may in the exercise of its discretion grant relief within the period of a year where the delay in filing was reasonably attributable in a substantial degree to such disability. (See Hogan v. City of Cohoes, 279 App. Div. 282.) We conclude that under the particular facts presented here the court was authorized to exercise its discretion and that there was no abuse of such discretion. (Appeal from an order of Monroe Special Term permitting claimants to serve notices of claim after the expiration of the statutory period.)