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Biancoviso v. City of New York

Supreme Court of New York, Appellate Division

January 24, 1955

City of New York

APPEAL from an order of the Supreme Court at Special Term (JOHNSON, J.), entered February 24, 1954, in Queens County, which granted plaintiffs' motion for permission to file a notice of claims pursuant to subdivision 5 of section 50-e of the General Municipal Law.


Page 321

Adrian P. Burke, Corporation Counsel (Ave Yeghenian and Seymour B. Quel of counsel), for appellants.

Abraham Levine for respondents.


On May 14, 1953, the infant plaintiff, thirteen years old, sustained injuries when he ripped his hand on a sharp hook used for the hanging of maps, which hook was placed beneath an electric light switch in his classroom in P. S. No. 4, borough of Queens. The injury required eleven sutures, and it is claimed that his hand is disfigured with a hideous scar four and a half inches long.

On February 4, 1954, six months after the expiration of the ninety-day period allowed by statute for filing a notice of claim (General Municipal Law, ยง 50-e, subd. 1), the infant's mother retained an attorney, whose motion for leave to file a late notice of claims was granted.

The moving papers are based upon an affidavit of the mother. The facts stated are: Immediately upon the happening of the accident the infant's teacher sent him to the principal, who in turn sent him to the school nurse. First-aid treatment was given by the nurse. The infant was taken to St. John's Hospital in an automobile driven by another teacher and there treated. This teacher drove the infant home and advised the mother of the accident. Within a week, the mother visited the class teacher. She also visited the principal, inquiring as to the steps to be taken with respect to the infant's injuries. The principal promised that 'she would advise' the mother. The mother relied on the statement of the principal and did nothing further until January 18, 1954. She then telephoned the principal 'who apologized for not contacting' her sooner, and stated 'for the first time' that it was necessary for the mother to report the accident to the superintendent of schools. The mother thereupon consulted a lawyer, who made the instant application.

In urging reversal of the order, the primary contention of appellants is that the failure to file was not by reason of infancy or mental or physical disability within the meaning of section 50-e of the General Municipal Law. The pertinent part of section 50-e is as follows:

'5. Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim as provided in the foregoing subdivisions of this section 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.

Page 322

'Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim.'

In considering this section, the Court of Appeals, in Matter of Martin v. School Bd. (Long Beach) (301 N.Y. 233), cited the following introductory statement of the Judicial Council in its recommendation to the Legislature in dealing with the subject (pp. 236-237): "The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property. It is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surrounding the alleged claim are still 'fresh'. On the other hand, 'these provisions (notice statutes) were not intended as a trap for the unwary and the ignorant.' An examination of the decisional law, however, indicates that far too often technicalities in this field have prevented the disposition of honest claims on their merits.' (Tenth Annual Report of N.Y. Judicial Council, 1944, p. 265, inner quotations from 17 Corn, L. Q. 687, 689 [1932].)'

In other words, if the claim is honest and the municipality has an opportunity to make its investigation within a reasonable time, the court has discretion to grant leave to an infant to serve a belated notice ...

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