Opinion
February 25, 1971
On remittitur from the Court of Appeals ( 27 N.Y.2d 890) we are to determine the questions of fact. In 33 A.D.2d 671, we reversed on the law the order of July 11, 1969 which permitted the late filing of a notice of claim on the part of an infant. The Court of Appeals reversed and remitted the matter to us pursuant to CPLR 5613 for determination on the facts. We hold the Authority had notice within the 90-day limitation and affirm the order of the Supreme Court, New York County. Within that period respondent received a request on behalf of the petitioner concerning the details of the accident and on May 13, 1969, before the expiration of the 90-day statutory period, petitioner's attorney was apprised of the 90-day limitation by a representative of the respondent. Thereafter by notice of motion dated June 4, 1969, shortly after the expiration of the 90-day period, the instant application was made for leave to serve a late notice of claim. We conclude that the failure to serve a timely notice within the 90-day period prescribed by section 50-e Gen. Mun. of the General Municipal Law is attributable to the infancy of the infant plaintiff who at the time of the occurrence was six years of age and did not possess the knowledge or information required to serve the necessary notice. ( Biancoviso v. City of New York, 285 App. Div. 320, 325; cf. Matter of Shankman v. New York City Housing Auth., 16 N.Y.2d 500, affg. 21 A.D.2d 968; Natoli v. Board of Educ. of City of Norwich, 303 N.Y. 646, affg. 277 App. Div. 915.)
Concur — Stevens, P.J., Tilzer, Markewich, McNally and Eager, JJ.