Claims of Poulos v. Union Free School District No. 1

Hugh S. Coyle, J. This is an application by claimants for leave to file and serve a notice of claim for damages against the defendants after the expiration of the statutory period, pursuant to the provisions of the General Municipal Law (§ 50-e, subd. 5). The infant claimant herein was injured while riding on a school bus. She is seven years of age. Her father and natural guardian retained counsel 26 days prior to the expiration of the statutory 90-day period in which a claim must be filed. Eleven days subsequent to the expiration of the statutory period, the attorney attempted to file a claim. This court is well aware of the line of cases cited by the defendant which substantiate the contention that infancy, in and of itself, does not create a disability sufficient to empower the court to grant relief such as is sought herein in connection with section 50-e (Genise v. New York City Housing Auth., 109 N. Y. S. 2d 881; Matter of Copes, 11 Misc 2d 48; Bivona v. City 33 of New York, 11 Misc 2d 1020; Matter of Ringgold v. New York City Tr. Auth., 286 App. Div. 806; Matter of Nori v. City of Yonkers, 300 N. Y. 632; Matter of Bosh v. Board of Educ., 282 App. Div. 887; Schnee v. City of New York, 285 App. Div. 1130, affd. 1 N Y2d 697). However, the court is of the opinion that its discretion should be exercised to permit a claim to be filed on behalf of an infant even though no claim was filed within the statutory 90-day period. The Legislature in the enactment of section 50-e of the General Municipal Law intended that an infant should not have his rights forfeited because of the failure of his guardian or his attorney to act within the prescribed statutory period provided leave is sought within one year of the date of the injury. (Hogan v. City of Cohoes, 279 App. Div. 282; Murphy v. Village of Fort Edward, 213 N. Y. 397; Russo v. City of New York, 258 N. Y. 344; Natoli v. Board of Educ., 277 App. Div. 915, affd. 303 N. Y. 646; Zelermyer v. Board of Educ., 130 N. Y. S. 2d 820; Short v. Board of Educ., 164 N. Y. S. 2d 476; Spicer v. City of Watertown, 19 Misc 2d 756.) Accordingly, leave is granted to file a claim on behalf of the infant plaintiff only within 10 days from the date of the order to be entered hereon.