Opinion
January 14, 1971
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Marsh, Witmer and Henry, JJ.
Order unanimously reversed on the law and facts and in the exercise of discretion, without costs, and proceeding remitted to Erie Special Term for further proceedings in accordance with the following Memorandum: On this application by petitioner to file a notice of claim after the expiration of the 90-day period specified in section 50-e Gen. Mun. of the General Municipal Law it appears that her father consulted attorneys on her behalf within the 90-day period and that her present attorneys were thereafter employed by her and received the file from the original attorneys after expiration of the filing period. Although she alleges that employment of attorneys by her father was not authorized by her, the facts and circumstances in respect thereto are not disclosed. Her papers also lack dates and details of her hospitalization, medical treatments and when her present counsel were consulted and retained (cf. Matter of Robinson v. New York City Housing Auth., 31 A.D.2d 908). She should reveal when she first learned of the obligation to file a notice of claim, the details of her employment of and consultation with attorneys and the details of her hospitalization and medical treatment. Depending upon the facts thus revealed there may be additional matters that she should explain in order to justify the delay in filing the notice. (See dissenting memorandum in Millington v. New York City Tr. Auth., 33 A.D.2d 737, 738.)