Opinion
April 26, 1948.
Appeal from an order, as resettled, granting a rehearing of respondent's application for leave to file a notice of claim, pursuant to the provisions of section 50-e Gen. Mun. of the General Municipal Law, and upon such rehearing granting the application. The proposed claim was based upon the alleged neglect and maltreatment of respondent while a patient in a city hospital from June 12, 1946, to July 8, 1946. Resettled order reversed on the law and the facts, without costs, and the motion denied, without costs. There was no adequate showing that the failure to serve the notice of claim within the statutory period was the result of physical or mental incapacity within the purview of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. Moreover, the delay in making this motion until April, 1947, was not satisfactorily explained. ( Matter of Ruskin v. City of New York, 271 App. Div. 934; Matter of Fabiani v. Town of North Hempstead, 272 App. Div. 1016; Matter of Blank v. City of New York, 273 App. Div. 812.) Lewis, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.