Eisman v. Westchester County

Samuel W. Eager, J.

This is an application pursuant to subdivision 5 of section 50-e of the General Municipal Law on behalf of an infant to serve a notice of claim after the expiration of the 90-day period fixed by said section. The infant is of an age placing her in the classification of a mature infant, to wit, 17 years of age. She sustained her alleged injuries in an accident occurring on May 17, 1958, while she was upon an amusement ride in Playland Amusement Park. She was then residing with her father and left it to him to take care of her claim and hire an attorney. She and her father state that they were not apprised of the fact that the park was owned and operated by the county and the Playland Commission. Negotiations by the father after the accident were had with an insurance company and not with the county or commission, and the parties allege that full co-operation was rendered to the company, with full information given to it about the accident.

Finally, when in September, 1958, it was discovered that the Amusement Park was owned and operated by the county and the Playland Commission, this application was made. Under the circumstances, the court, in its discretion, is empowered to grant relief to the infant. It was because of her infancy that she left to her father the matter of looking into the matter of who was responsible for the accident, and into whether or not the responsibility did lie with a municipality or public corporation requiring the filing of a notice of claim. The infant may be relieved of the neglect or inadvertence of the father and of the attorney employed by him, where, as here, it appears that the county and the commission and their insurer knew about the alleg-ed claim well within the 90-day period, and there is no showing of any prejudice to them resulting from the delay in filing. Application granted insofar as permission is sought to file a notice of claim in behalf of the infant. (See Biancoviso v. City of New York, 285 App. Div. 320; Matter of Friend v. County of Onondaga, 12 Misc 2d 51.)

Settle order on notice.