Opinion
October 1, 1951.
On November 21, 1950, claimant, an employee of Sanitary District No. 6 of the Town of Hempstead, was injured when a caterpillar-type tractor, owned by the Town of North Hempstead and operated by one of its employees, was caused to run on and over claimant's right foot resulting in the amputation of two toes. On December 3, 1950, claimant left the hospital and returned to his home. Between December 3, 1950, and February 12, 1951, he made several necessary visits to his physician in Hempstead. He returned to his employment on February 12, 1951, one week prior to the last day for filing a notice of claim, and has been so employed ever since. After the ninety-day period to file a notice of claim had expired, claimant moved for permission to serve a notice of claim on the ground he was physically incapacitated from serving such notice. The motion was granted on defendant's default. Defendant then moved to vacate the order granting plaintiff's motion, to open its default, and for reargument. The court granted the motion to vacate the order and to open defendant's default, but provided in the order that the notice of claim should be deemed to have been served as of the date of its service under the vacated order. It is from this order that defendant appeals. Order, insofar as it provides that the notice of claim be deemed to have been served as of the date of its service under the vacated order, reversed on the law and the facts, without costs, and plaintiff's motion for permission to file a notice of claim denied, without costs. Insofar as defendant appeals from those parts of the order granting its motion to vacate the prior order and to open its default, appeal dismissed, without costs. Claimant failed to show that the injuries sustained by him incapacitated him physically or mentally so as to prevent the service of a notice of claim by him or by someone on his behalf within the required time. ( Matter of Johnson v. City of New York, 278 App. Div. 945; Matter of Sullivan v. Town of Babylon, 277 App. Div. 791, affd. 302 N.Y. 609; Matter of Donovan v. Board of Educ. of Peekskill Union Free School Dist., 277 App. Div. 904, affd. 301 N.Y. 739; Matter of Haas v. Incorporated Vil. of Cedarhurst, 272 App. Div. 1031, affd. 298 N.Y. 757.) Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.