Citation Numbers: 11 Misc. 2d 1020
Judges: Friedman
Filed Date: 3/4/1958
Status: Precedential
Modified Date: 2/5/2022
Plaintiff applies for leave to serve a late notice of claim. The application is made only on behalf of an infant plaintiff who is now fifteen and one-half years of age and who at the time of the accident was fourteen and one-half years old. The accident occurred on February 28, 1957, and this application (and the prior one which was denied without prejudice because of a defect in the papers) was brought on during the last month before the time to make such application would have finally expired.
Disregarding for the moment the merits of the right to recovery for the accident described in the moving papers, the court has come to the conclusion that this application may not be granted. Sympathetic as the court may be to the plaintiff’s position herein, and giving due regard to the fact that he is an infant who was fourteen and one-half years of age at the time of the accident, the court finds that the reasons assigned for failing to file the notice of claim in time are not those which section
In Matter of Bosh v. Board of Education (282 App. Div. 887) the Appellate Division in this department had occasion to pass upon this very question, though on a different set of facts. The infant in that case, who was 15 years old, failed to file his notice of claim in time and applied for leave to do so, and the Special Term granted the application. The Appellate Division reversed and denied the motion, stating: “ The failure to serve a notice in time was not by reason of the claimant’s infancy and no other disability prevented timely filing. (Matter of Nori v. City of Yonkers, 274 App. Div. 545, affd. 300 N. Y. 632; Matter of Lustig v. City of N. Y., 278 App. Div. 716; Matter of Adanucio v. City of N. Y., 281 App. Div. 763).” In Matter of Abiuso v.
If the court had any discretion, despite the fact that there appears to be grave doubt as to whether plaintiff is entitled in any event to recover in this action, the failure of the lawyer to file the notice of claim in time would not be a bar to the rights of this infant plaintiff. This set of circumstances and the- decision which the court is bound to make herein point up the necessity for the passing of legislation by the Legislature of the State of New York which would permit the court in its discretion, for any reason which has merit, to extend the time to file a notice of claim. Particularly is it important in the case of infants, that the court be permitted to grant such applications even after the expiration of the present statutory one-year period. But it is the Legislature which must enact the law and the court which must interpret it, and despite the inequities which may sometimes occur, the court has no power to interpret the law other than as it has been written by our legislative branch of Government.
Under all the circumstances, the application presently made must be and is denied.