Opinion
285 A.D. 1130 141 N.Y.S.2d 88 Helen SCHNEE, an infant by Stanley Schnee, her guardian ad litem, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant. Supreme Court of New York, First Department May 17, 1955.
Ave Yeghenian, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief, Peter Campbell Brown, Corp. Counsel, New York City), for defendant-appellant.
Irwin Issacs, New York City, for plaintiff-respondent.
Before PECK, P. J., and CALLAHAN, BREITEL, BASTOW and RABIN, JJ.
PER CURIAM.
Defendant City of New York appeals from an order granting an infant's application to file a notice of claim against it after expiration of the 90-day period prescribed by section 50-e of the General Municipal Law.
On December 10, 1953, it is alleged, the claimant, then nearly 20 years of age, tripped over a broken sidewalk in New York City, injuring her knee. Shortly thereafter, she was married and, not thinking much of the injury, went on a honeymoon trip. Upon her return, the knee was treated. Six months later, after she experienced more pain, the knee was X-rayed and surgery was advised. She went to illinois for the operation and then returned to her New York home. The instant application, made on December 6, 1954, followed.
It is contended by the infant claimant, that, although the 90-day period has elapsed, the court, under the statute, has discretion to permit a late filing of the notice of claim. We do not agree.
The statute provides:
'Where the claimant is an infant * * * and by reason of such disability fails to serve a notice of claim * * * within the time limited therefor, * * * the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of [ninety days after the claim arises].' General Municipal Law, § 50-e, subd. 5. (Matter in brackets added).
It is clear from this language, and the authorities which interpret it, that infancy itself is insufficient to enlarge the 90-day period. Before the discretionary power to enlarge should be invoked on the ground of infancy, there should be a cognizable relation between the fact of infancy and the failure to file within the short statutory time limitation. Nori v. City of Yonkers, 274 A.D. 545, 85 N.Y.S.2d 131, affirmed 300 N.Y. 632, 90 N.E.2d 492; Natoli v. Board of Education of City of Norwich, New York, Union Free School Dist. No. 1, 277 A.D. 915, 98 N.Y.S.2d 540, affirmed 303 N.Y. 646, 101 N.E.2d 761; Hogan v. City of Cohoes, 279 A.D. 282, 110 N.Y.S.2d 3; Biancoviso v. City of New York, 285 A.D. 320, 137 N.Y.S.2d 773.
Here, at the time of the accident, the infant was a mature girl of almost 20 years, who, within a matter of days, undertook the responsibilities of marriage. The only reasons assigned for her failure to file a notice of claim within 90-day period are 'I did not think much of the injury, thinking that same would heal and I would not be incapacitated and that I would not be required to bring a law suit to recover damages for such injuries.' Her ignorance of the scope of the injury is not shown to have resulted from immaturity. Under these circumstances, therefore, the failure to comply with the statute cannot be said to be 'by reason' of her infancy.
Accordingly, the order should be reversed as a matter of discretion, and the motion denied, with $20 costs and disbursements of this appeal to appellant.
Order unanimously reversed as a matter of discretion with $20 costs and disbursements to the appellant and the motion denied. Order filed.
All concur.