Opinion
January 27, 1947.
On November 20, 1945, respondent sustained a fracture of the foot because of the allegedly defective condition of a public sidewalk. As a result thereof, her foot was in a cast for about one month and she was disabled for a further period of five weeks, until the week of January 28, 1946. The instant application under section 50-e Gen. Mun. of the General Municipal Law, for permission to serve a notice of claim, was made May 27, 1946; and respondent's affidavit in support thereof was verified May 8, 1946. The moving papers were completely silent as to the reason for the delay from January until May in the making of the motion. Order, insofar as appealed from, reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, without costs. Under subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law, an application for leave to serve a notice of claim must be made within a reasonable time after the expiration of the period of disability relied upon as excusing the failure to serve the notice within the prescribed sixty-day limit. That section also casts upon the party making the application the duty of showing the particular facts causing the delay. In our opinion, the respondent's motion was not timely, in view of the unexplained delay of approximately four months from the end of her disability until the making of the motion. Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [See post, p. 1023.]