Driskell v. City of New York

In a proceeding for leave to serve a notice of claim against respondent (General Municipal Law, § 50-e, subd. 5), petitioner appeals from an order of the Supreme Court, Kings County, dated February 14, 1968, which denied the application. Order reversed, on the law and the facts, with $10 costs and disbursements; application granted; and service of notice of claim, heretofore made, deemed valid. On February 19, 1967 petitioner was struck by an automobile while crossing an intersection. After x-ray examination at Coney Island Hospital, he was told nothing was wrong and was directed to leave despite his complaint of a pain in his ankle. On March 17, 1967 he incurred an “ excruciating ” pain in his left ankle. After admission to Bellevue Hospital and x-ray examination, it was determined that he had sustained a “ tri-malleolar ” fracture of the left ankle. He was confined to Bellevue until April 20, 1967 and then to a convalescent home until July 11, 1967. During this period he was disabled and unable to walk. Petitioner was sought as a witness for a man injured in the same accident as he who was similarly released from the hospital on the night of the occurrence but who was recalled by the hospital a week later for treatment of a fractured knee. Petitioner was first contacted on May 23, 1967; although his notice of claim was immediately prepared, it was not received by respondent until May 25, 1967, five days after the statutory 90-day period to file had expired. Under these facts we consider petitioner to have been physically incapacitated within the intendment of subdivision 5 of section 50-e. This being so, discretion should have been exercised to excuse the late filing of the notice of claim (Matter of Teevan v. City of New York, 28 A D 2d 1211 ; Matter of Braunstem v. City of New York, 272 App. Div. 1060 ; Haines v. City of New York, 270 App. Div. 1003 , affd. 296 N. Y. 702 ), particularly when no prejudice will result to respondent. Rabin, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.