Nolan v. Otsego County
| Decision Date | 27 January 1977 |
| Citation | 391 N.Y.S.2d 15,55 A.D.2d 422 |
| Parties | Ruth L. NOLAN, Appellant, v. COUNTY OF OTSEGO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
William J. Cade, Albany, for appellant.
Carter, Conboy, Bardwell, Case & Blackmore, Albany (William P. Soronen, Jr., Albany, of counsel), for respondent.
Before KOREMAN, P.J., and SWEENEY, KANE, MAHONEY and MAIN, JJ.
Claimant has alleged that she received personal injuries as a result of an automobile accident on October 21, 1975 involving a vehicle owned by defendant and a vehicle in which claimant was a passenger. In her affidavit claimant listed as her injuries a concussion, a fractured ulna and a deep laceration of the knee. Her attending physician, in an affidavit, stated that claimant was presently disabled relative to balance and in coordination possibly relating from intercranial injury. It also appears from the physician's affidavit that claimant was hospitalized from October 21, 1975 to October 29, 1975. It is claimant's contention that she has been physically disabled from the date of the accident until the present and thus prevented from filing a notice of claim. By a notice of motion dated June 8, 1976, an application was made for leave to serve a late notice of claim pursuant to subdivision 5 of section 50--e of the General Municipal Law upon the grounds that claimant was physically incapacitated and thus unable to timely file. Leave was denied at Special Term and this appeal ensued.
Claimant has alleged several facts in her brief not presented at Special Term and not properly presented in the record. These new allegations may not be considered by this court (Bankers Trust Co. of Albany, N.Y. v. Martin, 51 A.D.2d 411, 381 N.Y.S.2d 1001). Initially, claimant contends that a court's discretion in granting leave to serve a late notice of claim has been expanded by an amendment to section 50--e of the General Municipal Law which became effective September 1, 1976 (L.1976, ch. 745). Defendant argues that this amendment should not be given retroactive effect. This court has previously decided that the saving provisions of subdivision 5 of section 50--e were intended as remedial legislation (Matter of Tricou v. Town of Duanesburg, 23 A.D.2d 949, 260 N.Y.S.2d 162). The amendment of this subdivision is also remedial in nature and should be given retrospective application (Matter of Busch v. Austin Co., 37 A.D.2d 648, 322 N.Y.S.2d 416; Matter of Mlodozeniec v. Worthington Corp., 9 A.D.2d 21, 189 N.Y.S.2d 468). A court now has general discretion to extend...
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Kelly v. State
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