Opinion
January 18, 1971
In a proceeding pursuant to 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, Kings County, dated May 4, 1970, which granted the application. Order reversed, on the law, without costs, and application denied. The findings of fact are affirmed. Petitioner was injured while a passenger on a Transit Authority bus on September 11, 1969. An attorney was consulted and a notice of claim against the New York City Transit Authority was executed on October 20, 1969. The attorney's secretary erroneously sent the notice to the City of New York, by certified mail. Thereafter, on October 29, 1969, the attorney received the return receipt for the mailing from the Law Department of the city; and subsequently received a notice for a hearing from the city's Comptroller dated November 24, 1969. This was within the 90-day period allowed for filing a notice of claim. When the mistake was realized, the attorney contacted the Transit Authority, but it refused to accept late service. We are of the opinion that Special Term erred in granting the application. No physical or mental incapacity of petitioner, a 65-year-old female, has been shown. The only explanation offered is the mistake in the office of her attorney; and this is legally insufficient (General Municipal Law, § 50-e, subd. 5; Matter of Goglas v. New York City Housing Auth., 13 A.D.2d 939, affd. 11 N.Y.2d 680; Matter of Negrone v. New York City Tr. Auth., 15 A.D.2d 676). Rabin, P.J., Shapiro, Christ and Benjamin, JJ., concur.