Polito v. New York City Transit Authority

Order granting application, pursuant to section 50-e of the General Municipal Law, for leave to serve a notice of claim for damages for personal injuries more than ninety days after the claim arose reversed on the law and the facts, without costs, and application denied, without costs. It is alleged that respondent, while walking underneath an elevated structure in Brooklyn, was struck by a piece of railroad tie and sustained certain head injuries, including post-concussion syndrome with headaches and dizziness. Within the ninety-day period after the accident occurred, a notice of claim was served upon the City of New York but not upon appellant, respondent’s attorney not then realizing that the city had a few weeks before the accident leased the elevated structure to appellant. Respondent .asserts that her failure to serve a notice of claim upon appellant was due .to her mental and physical incapacity, coupled with said lack of information con the part of her attorney. However, her physiean’s certificate describing her injuries does not show that they disabled her from filing a proper, timely notice, nor is there other sufficient basis in the record for such a finding. In the circumstances, she is not entitled to the relief sought. (General Municipal Law, § 50-e; Matter of Coyle v. New York City Tr. AuCh.¡ 283 App. Div. 1083.) Nolan, P. J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.