Franco v. City of New York , 270 A.D. 1050 ( 1946 )

The respondent was injured as a result of the alleged negligence of the City of New York. He did not serve a notice within sixty days after the claim arose, as required by section 50-e of the General Municipal Law. (L. 1945, ch. 694.) Two days after the expiration of such period the respondent moved at Special Term for an order granting leave to him to serve a proposed notice of claim within a reasonable time, on a ground set forth in subdivision 5 of the section, namely, physical incapacity and inability to serve a notice in time. Order granting the motion reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, without costs. The respondent’s arm was in a cast for a portion of the sixty-day period, but there is no showing that he was incapacitated within the meaning of subdivision 5 of section 50-e of the General Municipal Law, and and it is not within the court’s discretion to extend the period for service. Lewis, P. J., Hagarty, Johnston, Adel and Nolan, JJ., concur.