The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
On December 22, 1977, this court issued an order granting plaintiff's motion to file a notice of claim against the City of New York (City) nunc pro tunc. This memorandum sets forth the reasons in support of that order. The court's jurisdiction is based on 28 U.S.C. § 1332.
On October 20, 1976, plaintiff was involved in an automobile accident on the Whitestone Parkway (Parkway) in Queens, New York. The accident rendered him a traumatic paraplegic with a neurogenic bowel and bladder. Plaintiff's complaint alleges that his accident was a result of the City's negligence in that the City had negligently allowed a pool of water to accumulate and a large hole to develop at the Linden Place exit of the Parkway. Plaintiff claims that the pool of water caused his vehicle to enter into a skid and strike the hole in the roadway which, in turn, caused him to lose control of the vehicle and strike a utility pole.
N.Y.Gen.Mun.Law § 50-e(1)(a) (McKinney 1976) provides that as a condition precedent to commencing a lawsuit grounded in tort against a municipality of the State of New York, a notice of claim must be filed within ninety days after the claim arises. This motion to file the notice of claim nunc pro tunc was filed with the court on October 18, 1977, almost one year after the claim arose. Plaintiff argues that he should be allowed to file a late notice of claim pursuant to Section 50-e(5) of the General Municipal Law of New York which provides:
5. Application for leave to serve a late notice.
Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one.
The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation, or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
The City argues that the court lacks jurisdiction to hear plaintiff's motion because the notice of claim is a condition precedent to the initiation of any lawsuit between plaintiff and the City and "[at] this stage the controversy concerns only the 'condition precedent' . . ." to the lawsuit and not the lawsuit itself. (Defendant's Memorandum of Law). According to this argument, the diversity of citizenship of the parties would be sufficient to sustain the court's jurisdiction if the matter before the court were a lawsuit. However, because the application to file a late notice of claim is not a lawsuit, but rather a condition precedent to the bringing of a lawsuit, the City argues that the court lacks power to entertain the motion. The court finds that the argument is without merit.
N.Y.Gen.Mun.Law § 50-e(5) recognizes that there may be instances when a lawsuit is commenced prior to the making of an application to file a late notice of claim, and specifically provides that such an application shall not be denied on the ground that it was made after the action was commenced. In this case, the complaint was filed on October 14, 1977, four days before the motion to file a late notice of claim was filed. The case is therefore one of those situations anticipated by § 50-e(5), and the court accordingly holds that it does have jurisdiction to entertain the present motion.
The City also asserts that the federal courts are not empowered to rule on applications to file a late notice of claim because N.Y.Gen.Mun.Law § 50-e(7) reserves that power for the State courts. However, that section provides that
All applications under this section shall be made to the supreme court or to the county court in a county where the action may properly be brought for trial or, if an action to enforce the claim has been commenced, where the action is pending. (emphasis added)
Since an action to enforce plaintiff's negligence claim has been commenced in this court, the application to file a late notice of claim is properly before this court as well.
Having established that this court has jurisdiction to entertain plaintiff's application, the court also finds that the motion should be granted. N.Y.Gen.Mun.Law § 50-e(5) was amended by the New York State Legislature in 1976. Prior to the amendment, that section permitted the court to exercise its discretion to grant leave to file a late notice of claim in certain situations.
One of those situations arose when a claimant who was physically or mentally incapacitated, and who, because of such disability, failed to file a timely notice of claim. See, e.g., Millington v. New York City Transit Authority, 33 A.D.2d 737, 305 N.Y.S.2d 870 (1st Dep't 1969). ...