Opinion
March 27, 1958
Appeal from an order of the County Court of Cortland County which granted a motion by claimants, an infant and his father, for permission to file late notice of claims pursuant to subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. The infant, 15 years of age, was injured while operating an electric drill press in a shop maintained by the appellant Board of Education for purposes of instruction. He was immediately treated by the school nurse and the school physician. Twelve days after the accident both claimants were interviewed by a representative of appellants' insurance carrier. Appellants contend that the motion on behalf of the infant was improperly granted because there was no proof of any disability related to infancy. In reversing an order denying the motion of an 18-year-old infant for permission to file a late claim, we said, "A disability may arise in a legal sense from infancy which is not literally due to the limitations of understanding or action common to very small children." ( Matter of Every v. County of Ulster, 280 App. Div. 155, 156, reversed and remitted for determination of the questions of fact 304 N.Y. 924, facts found and motion granted 281 App. Div. 1060.) We had previously construed the provision of the statute with reference to disability as meaning "that where the delay in filing was reasonably attributable in any substantial degree to the fact of infancy the courts might grant relief". ( Matter of Hogan v. City of Cohoes, 279 App. Div. 282, 285.) In Schnee v. City of New York ( 285 App. Div. 1130, affd. 1 N.Y.2d 697) relied upon by appellants, it affirmatively appeared that the delay on the part of the infant, "a mature girl of almost twenty years" was due to particular reasons in no way related to her infancy. The cases decided in the First and Second Departments, upon which appellants also rely, gave effect to a construction of the statute more narrow than ours and one which we have declined to follow. A more liberal interpretation now obtains in the Second Department ( Biancoviso v. City of New York, 285 App. Div. 320. ) The order was properly granted with respect to the infant's claim. Upon the application with respect to the derivative claim of the father, it was shown that his wife was seriously ill at the time of the accident and died two weeks later and that as a result, and while he was under the necessity of caring for his three children and burdened with his own work, he became distraught and took no timely action to obtain legal advice or to file a claim. The fact that certain assurances allegedly made to him by the board's insurance carrier may have been an additional reason for his inaction does not detract from the legal effect of whatever incapacity existed. That emotional tension and mental distress may exist in such degree as to constitute mental incapacity within the contemplation of subdivision 5 of section 50-e may not be doubted. The County Court's finding and resultant order were within the limits of its discretion. (See Matter of Bookhout v. Central School Dist., 284 App. Div. 995; Matter of Sullivan v. City of Watervliet, 282 App. Div. 1097; Matter of Colehamer v. City of Albany, 276 App. Div. 809.) Order affirmed, with $10 costs. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.