Opinion
July 21, 1950.
Joseph H. Sand for petitioner.
John P. McGrath, Corporation Counsel ( George P. Hennessy of counsel), for respondent.
Petitioner seeks an order granting her leave to serve a notice of claim upon the City of New York on the ground that she was physically incapacitated from serving a notice within sixty days after the claim arose. (General Municipal Law, § 50-e, subd. 5.)
On March 14, 1950, petitioner fell on a sidewalk, allegedly because of its disrepair, sustaining, among other injuries, a fracture of her back. She was hospitalized and a cast was applied which was not removed until on or about June 20, 1950, or more than three months after the accident. Her physician states in his affidavit that prior to the removal of the cast the petitioner "was wholly incapacitated and thereby prevented from leaving her home." Since the removal of the cast she has, with assistance from members of her family, been able to visit her physician each week.
The application is resisted mainly on the grounds, first, that petitioner has not set forth the date when she retained counsel and, second, that she has not shown herself to have been mentally incapacitated from having a notice of claim filed for her. As to the first ground, the petitioner alleges that she had "just retained" counsel. The petition being dated June 27, 1950, it is reasonable to assume that counsel was retained shortly before that date. As to the second ground urged in opposition, namely, failure to show mental incapacity, it is sufficient to state that the statute requires a showing of "mental or physical" incapacity, not both. (See Braunstein v. City of New York, 272 A.D. 1060.) Under all of the circumstances herein, the court in its discretion will grant the application and permit petitioner to serve a notice of claim within five days after the entry of the order hereon.
Submit order.