Savelli v. City of New York

• Decision Date: 15 October 1984
• Parties: In the Matter of William SAVELLI, Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 561

480 N.Y.S.2d 561

104 A.D.2d 943

In the Matter of William SAVELLI, Appellant, v. CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 15, 1984.

Paul S. Mirman, Brooklyn (Michele Turchin, Brooklyn, of counsel), for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Michael Gage and Cecilia Tso, New York City, of counsel), for respondent.

Before BRACKEN, J.P., and NIEHOFF, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a late notice of claim, petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated January 21, 1983, as, upon granting reargument, adhered to its original determination, made in an order dated October 20, 1982, denying the application without prejudice.

Order reversed insofar as appealed from, without costs or disbursements, and matter remitted to Special Term for further proceedings consistent herewith.

Approximately six months after being released from the Rusk Institute for Rehabilitation Medicine, petitioner, by his attorney, petitioned for leave to serve a late notice of claim on the City of New York. By order dated October 20, 1982, Special Term denied the application, without prejudice, on the ground that petitioner had failed to establish that he was physically incapacitated. By order dated January 21, 1983, petitioner's motion to reargue was granted and, upon reargument, Special Term adhered to its original determination. Under the circumstances of this case, we disagree with the ground recited by Special Term for the denial of petitioner's application.

In cases where the extent and duration of an applicant's disability cannot be ascertained unless documented by medical affidavits and hospital records, the absence or insufficiency of such documentation is properly recited as a factor for denying an application to serve a late notice of claim predicated upon an allegation that the applicant's failure to comply with section 50-e of the General Municipal Law was due to physical incapacitation (see Fox v. City of New York, 91 A.D.2d 624, 456 N.Y.S.2d 806; Matter of Klobnock v. City of New York, 80 A.D.2d 854, 436 N.Y.S.2d 769; Heiman v. City of New 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 affidavit nor a hospital record is necessary to demonstrate physical incapacitation because the extent and duration of the disability is readily apparent to a lay person. Consequently, the affidavit submitted by petitioner's wife in support of his application for leave to serve a late notice of claim sufficed to show that petitioner was and still is physically incapacitated. We further reject the city's contention that the papers...