Opinion
June 1, 1961
Rudell, Gelfand McIver for petitioner.
Leo A. Larkin, Corporation Counsel, for respondent.
Motion to permit the late filing of a notice of claim against the City of New York. The alleged accident took place at one of respondent's hospitals on May 9, 1960, allegedly due to the negligence and malpractice of respondent and its employees therein. The instant motion was served upon respondent on May 8, 1961, within a period of one year after the alleged accident. Accordingly, contrary to respondent's contentions, the court retains the power to rule on the present application as a matter of discretion if the delay in filing the notice of claim was occasioned by the physical or mental incapacity of petitioner (General Municipal Law, § 50-e, subd. 5). Under the circumstances presented of a severe accidental injury to petitioner, followed by the alleged accident at respondent's hospital; the further necessary hospitalization; the treatment and convalescence required; the medical affidavit submitted; the permanent physical and mental incapacity of petitioner; and his confinement to home and bed until some time in April, 1961, it cannot be said as a matter of law that the service of the moving papers on May 8, 1961 constituted an unreasonable delay. On the contrary, the delay involved appears fully justified and reasonable under the circumstances. Accordingly, as a matter of judicial discretion, the late filing is permitted and the motion is in all respects granted.