Perna v. Town of North Hempstead ( 1955 )

Appeal from so much of an order as adheres to a previous decision and grants respondent’s application for leave to serve a notice of claim, pursuant to subdivision 5 of section 50-e of the General Municipal Law. Order modified on the law by striking out everything after the word “ vacated ” in the second ordering paragraph, and by providing in lieu thereof the following: “and it is further, Ordered that the application for leave to serve a notice of claim be and the same is hereby denied.” As so modified, order affirmed, without costs. It is undisputed that, although respondent sustained a fracture of his left leg and foot, had a east thereon for about two months after the accident, and was unable to stand on that leg or to walk for about an additional month, he was able to visit his doctor’s office five days after the accident and thereafter, and was absent from his home on several other occasions well within the period of the statutory limitation. Under the circumstances it may not be said that he was so incapacitated that he was not able to serve a notice of claim within the prescribed period of ninety days. Wenzel, Acting P. J., MacCrate, Beldock, Murphy and Ughetta, J J., concur.