Opinion
November 23, 1959
Present — Nolan, P.J., Beldock, Hallinan and Kleinfeld, JJ. Murphy, J., deceased.
Appeal (1) from an order denying appellant's application for leave to serve a notice of claim after the expiration of the period fixed by section 50-e Gen. Mun. of the General Municipal Law, and (2) from so much of an order granting leave to renew said application as on renewal adhered to the original decision. Order on renewal modified on the law and the facts by striking from the second ordering paragraph everything following the word "renewal" and by substituting therefor the words "the motion is granted". As so modified, order insofar as appealed from unanimously affirmed, with $10 costs and disbursements to appellant. The notice of claim is to be served, if appellant be so advised, within 10 days after the entry of the order hereon. It appears without contradiction that appellant was seriously injured by a fall on a sidewalk under the control of the respondent, that during the entire period of 90 days following the accident she was confined to her bed and home under the constant care of a physician, except for two trips to the office of another physician for the purpose of having electro-encephalograms taken, and that said electro-encephalograms disclosed an injury to the brain. It further appears that appellant, upon advice of her physician, refrained from placing the matter in the hands of her attorney until more than 10 months after the accident, and her attorney made this application within three weeks thereafter. Assuming but not deciding that appellant might have been able, within the time limited by the statute, to furnish information to her attorney or to some other person who could have served a notice of claim on her behalf, we are nevertheless of the opinion that this record conclusively establishes that she could not herself have served the notice (cf. Matter of Rosenberg v. City of New York, 309 N.Y. 304). In our opinion, the denial of appellant's application constituted an improvident exercise of discretion. Appeal from order denying original application dismissed, without costs, as academic, in view of the determination of the appeal from the order made on the renewed application.