Opinion
December 14, 1965
Order entered January 22, 1964, granting an application by the mother of an infant in her individual capacity and as guardian for the infant for leave to serve a late notice of claim, unanimously reversed, on the law and the facts, and the application is in all respects denied, without costs or disbursements. The notice of claim was served on the 94th day following the accident. Failure to serve the notice of claim within the 90-day period required by subdivision 1 of section 50-e Gen. Mun. of the General Municipal Law, was not due to infancy or physical or mental incapacity of the claimant but to inadvertence of counsel. As to the parent, respondents concede that any relief which may be awarded an infant under section 50-e does not inure to the benefit of the adult claimant, the mother. (See Matter of McAllister v. New York City Housing Auth., 21 A.D.2d 660; Biancoviso v. City of New York, 285 App. Div. 320.) Since it has been shown that failure to file a timely notice was due to the attorneys' inadvertence, and did not occur by reason of the disability of infancy, it was improper to permit any extension of the statutory period to file the notice of claim on behalf of the infant. ( Matter of Shankman v. New York City Housing Auth., 21 A.D.2d 968, affd. 16 N.Y.2d 500; Matter of Goglas v. New York City Housing Auth., 13 A.D.2d 939, affd. 11 N.Y.2d 680.)
Concur — Valente, J.P., McNally, Eager and Steuer, JJ.