Opinion
September 21, 1970
In a proceeding pursuant to subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Suffolk County, entered January 6, 1970, which granted the application. Order reversed, on the law and the facts, without costs, and application denied. In our opinion, the respondent-claimant's alleged inability to read English does not constitute mental incapacity on her part within the meaning and purview of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. Her alleged inability to read the statement printed on the form notice of claim to alert a claimant to the necessity of serving the notice on appellant within 90 days, pursuant to that statute, is not such incapacity on respondent's part as would permit Special Term to direct appellant to accept her late notice of claim (cf. Matter of Olian v. City of New York, 271 App. Div. 1029; Matter of Fabricant v. City of New York, 273 App. Div. 975, affd. 298 N.Y. 818; Garcin v. Compagnie Generale Transatlantique, 160 Misc. 687; Matter of White v. City of N.Y., 285 App. Div. 69; Matter of Herrans v. City of N.Y., 7 A.D.2d 709). A fortiori, in our view, Special Term's order in this case is erroneous because respondent's son, who allegedly prepared the notice of claim for her in a legalistic manner, had arranged for her verification thereof on September 13, 1969, eight days prior to the last day for due service thereof. Although her notice of claim was dated and verified on September 13, 1969, we further note, as suggested in her brief, that she included in the notice a claim for medical expense incurred by her on September 18, 1969. We do not agree with the contention in respondent's brief that the printed form for a notice of claim which appellant gratuitously furnished to her four days after the accident, and which alerted her or anyone reading the form on her behalf, by readily readable printing, to the requirement that the notice should be served within 90 days after the accident, called for information beyond the scope of section 50-e Gen. Mun. of the General Municipal Law. Nor do we find the request for information therein concerning medical or hospital expense any additional excuse for late service of the notice of claim. Respondent's contention that subdivisions 2 and 6 of section 1276 Pub. Auth. of the Public Authorities Law should be declared unconstitutional for vagueness, in our view, is untenable (see Conroy v. Long Is. R.R. Co., 31 A.D.2d 834; Sudakin v. Long Is. R.R. Co., 32 A.D.2d 560). Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.