Citation Numbers: 32 A.D.2d 610
Filed Date: 4/3/1969
Status: Precedential
Modified Date: 1/12/2022
Orders, insofar as appealed from, unanimously reversed, without costs, and motion -denied. Memorandum: On October 15, 1966 plaintiffs (husband and wife) were in a motor vehicle that was struck by another vehicle operated by a third person. Plaintiff wife (respondent herein), then 19 years of age, received serious injuries. At some undisclosed subsequent date plaintiffs retained an attorney. It is alleged that more than four months after the accident (Feb. 24, 1967) at a hearing held under the direction of the 'Commissioner of Motor Vehicles plaintiffs came into’ possession of certain facts upon which a claim of negligence against the municipality could be based. Thereafter -the application of the wife was granted to file a notice of claim against the village although the 90-day period prescribed by section 50-e of General Municipal Law had elapsed. The record contains no proof that the failure to serve within the required time was by reason of physical disability or infancy as provided by the statute. Proof is required that physical incapacity prevented such action (Matter of Liegl v. City of Buffalo, 12 A D 2d 889). Respond