Asencio v. City of New York
| Decision Date | 04 May 1961 |
| Citation | 216 N.Y.S.2d 204 |
| Parties | Amelia ASENCIO v. CITY OF NEW YORK et al. |
| Court | New York Supreme Court |
Resta & Gold, Brooklyn, for plaintiff.
Charles H. Tenney, New York City, Corporation Counsel, for defendant.
Motion for leave to file a late notice of claim against the City of New York is denied unconditionally as to petitioner Amelia Asencio in respect of her derivative cause of action and denied, with leave to renew as to the infant David Asencio upon proper papers and for appropriate relief pursuant to General Municipal Law, § 50-e, and in particular subdivision 5 thereof. The infant is seventeen years of age. His affidavit should be submitted, setting forth with chronological detail the circumstances of the accident and the subsequent periods, five in number, of confinement in hospitals, as well as of the intervals between, his educational background and other relevant information tending to sustain his position that his infancy constituted a disability excusing his failure to serve a notice of claim within the time specified. In the absence of a showing to the contrary, an infant of age of the injured claimant is held mature enough to be subject to the same requirements of compliance with the provisions of § 50-e, subd. 1, as are demanded of an adult. Application of Bosh, 282 App.Div. 887, 124 N.Y.S.2d 762; Matter of Abiuso, 4 A.D.2d 876, 167 N.Y.S.2d 435; Bivona v. City of New York, 11 Misc.2d 1020, 172 N.Y.S.2d 345. Cf. Poulos v. Union Free School, 24 Misc.2d 32, 201 N.Y.S.2d 602, annotating citations both granting and denying such applications. The records of the Presbyterian Hospital, submitted on this application, should, upon the renewal thereof, be restored to their original condition, and those of the Cumberland and Kings County Hospitals procured and incorporated in the movant's papers. Were the court to grant the application in its present form upon the insufficient papers now before it, and in face of the respondent City's opposition, petitioner will have gained a Pyrrhic victory, if the order were subsequently to be set aside at a time when the 'one year after the happening of the event upon which the claim is based', the limitation fixed in § 50-e, subd. 5 for the exercise of discretion by the court to permit late filing, had already expired.
Settle order on notice.
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Savelli v. City of New York
...York, 85 A.D.2d 25, 447 N.Y.S.2d 158; Matter of Phillips v. Village of Frankfort, 31 Misc.2d 815, 220 N.Y.S.2d 171; Asencio v. City of New York, Sup., 216 N.Y.S.2d 204). However, where the injury sustained by an applicant renders him a quadriplegic, as in this case, neither a medical affida......