The late service of the notice of claim was thus a nullity and this Court is not at liberty to cure this defect. See Santiago v. City of New York, 742 N.Y.S.2d 566, 566 (N.Y. App. Div. 2002) (dismissing plaintiff's claims for failure to timely serve notice of claim where notice was served on defendants four days late); Pavlicko v. City of New York, 392 N.Y.S.2d 77, 77 (N.Y. App. Div. 1977) (minor's cause of action against the City barred because guardian served notice of claim two days late); White v. City of New York, 135 N.Y.S.2d 692, 693 (N.Y. App. Div. 1954) (suit precluded where notice of claim was filed one day late).
This requirement has been strictly construed. See, e.g., Shakur v. McGrath. 517 F.2d 983, 985 (2d Cir. 1975) (per curiam); Baez v. N.Y.C. Health Hosps. Corp., 80 N.Y.2d 571, 576 (1992): accord White v. City of New York, 285 A.D. 69, 69-70 (1st Dep't 1954) (per curiam) (suit precluded where notice of claim was filed one day late). A plaintiff's failure to file a notice of claim pursuant to state law requires a federal court to dismiss pendent state tort claims against the City or its officers for failure to state a cause of action.
Order reversed, on the law and the facts, without costs, and application denied. In our opinion, the respondent-claimant's alleged inability to read English does not constitute mental incapacity on her part within the meaning and purview of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. Her alleged inability to read the statement printed on the form notice of claim to alert a claimant to the necessity of serving the notice on appellant within 90 days, pursuant to that statute, is not such incapacity on respondent's part as would permit Special Term to direct appellant to accept her late notice of claim (cf. Matter of Olian v. City of New York, 271 App. Div. 1029; Matter of Fabricant v. City of New York, 273 App. Div. 975, affd. 298 N.Y. 818; Garcin v. Compagnie Generale Transatlantique, 160 Misc. 687; Matter of White v. City of N.Y., 285 App. Div. 69; Matter of Herrans v. City of N.Y., 7 A.D.2d 709). A fortiori, in our view, Special Term's order in this case is erroneous because respondent's son, who allegedly prepared the notice of claim for her in a legalistic manner, had arranged for her verification thereof on September 13, 1969, eight days prior to the last day for due service thereof. Although her notice of claim was dated and verified on September 13, 1969, we further note, as suggested in her brief, that she included in the notice a claim for medical expense incurred by her on September 18, 1969.
Notices of claim were filed on December 20, 1968, concededly one day too late (Public Authorities Law, § 1212; General Municipal Law, § 50-e). No general discretion is vested in the court to extend the time for serving a notice of claim, and discretion may only be exercised where the statutory conditions are shown to exist ( Matter of White v. City of New York, 285 App. Div. 69; Matter of Matrisciano v. City of New York, 281 App. Div. 104 6). So the fact that a service was only one day beyond the 90-day period is of no moment ( Matter of Core v. New York City Tr. Auth., 26 A.D.2d 781; Matter of O'Neil v. Manhattan Bronx Surface Tr. Operating Auth., 23 A.D.2d 488; Matter of Bloom v. New York City Tr. Auth., 19 A.D.2d 521). There was no showing that plaintiffs were physically or mentally incapacitated from serving the required notices. In fact, the contrary was shown.
The excuse offered does not come within any of the exceptions of the statute. (General Municipal Law, § 50-e, subd. 1; § 50-e, subd. 5; see Matter of Bloom v. New York City Tr. Auth., 19 A.D.2d 521, revg. 31 Misc.2d 805; Matter of White v. City of New York, 285 App. Div. 69.) Concur — Botein, P.J., Breitel, McNally, Steuer and Capozzoli, JJ.
The affidavits show that petitioner-respondent was confined to a hospital for approximately two weeks following the accident and to his home thereafter for approximately five weeks. It is highly questionable that he lacked capacity to give notice during this period of seven weeks, since it appears that he consulted his attorney on April 7 while in hospital (cf. Matter of De Stefano v. City of New York, 285 App. Div. 1042). Decisive, however, is his failure to offer any information at all regarding his physical or mental condition during the extensive time remaining after his home confinement ended. As pointed out in Matter of White v. City of New York ( 285 App. Div. 69, 70), also a case where the notice was served but one day late, we are forbidden to read the statute "as permitting a judicial extension for causes other than those prescribed in plain words." Concur — Botein, P.J., Valente, McNally, Eager and Staley, JJ.
The petitioner's application for leave to serve a late notice of claim was not made until March 20, 1962. As administratrix, the petitioner is not one within the purview of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law relating to those to whom the court, in the exercise of discretion, may extend the time for the service of a notice of claim ( White v. City of New York, 277 App. Div. 112 4, affd. 302 N.Y. 726). Moreover, the record is insufficient to establish that there was a disability on her part which continued to the time of the subject application (cf. Matter of White v. City of New York, 285 App. Div. 69). Our attention is directed to the fact that the instant proceeding was brought by the petitioner not only as administratrix but individually as the widow of the decedent, and also as the natural guardian and as the proposed guardian ad litem of the infant children. The petitioner contends that each of the infants and that she as the widow, "were and are `claimants' within the meaning of section 50-e"; and that each of them had the right to file the notice of claim contemplated by the statute.
( Matter of Aldi v. Board of Educ., 4 A.D.2d 921; Matter of Nunziato v. City of New York, 3 Misc.2d 450, affd. 2 A.D.2d 670; Matter of White v. City of New York, 285 App. Div. 69.) The language of subdivision (c) of section 608 Ins. of the Insurance Law is substantially similar to that of section 50-e Gen. Mun. of the General Municipal Law. The latter controls the filing of a notice of claim in tort actions against municipalities and has been strictly construed. If the Legislature intended a more liberal construction of section 608 Ins. of the Insurance Law it did not so indicate in using language substantially identical to that of subdivision 5 of section 50-e. The Legislature has unequivocally stated that the petitioner must be physically incapacitated. The petitioner herein has failed to show a disability so incapacitating as to prevent filing.
No area of general discretion seems admissible within this language." ( Matter of White v. City of New York, 285 App. Div. 69, 70.) It is only in those instances where the claimant is an infant, or is mentally or physically incapacitated, and by reason thereof fails to serve the notice within the statutory period, that the court may grant leave for late service of notice of claim. The injuries for which the claimant, Frances Menzel, seeks leave to serve a notice of claim consist of a broken arm.
We have recently said that "The power to be exercised under the carefully chosen words of the Legislature has been rigidly and exactly construed." ( Matter of White v. City of New York, 285 App. Div. 69.)