Incantalupo v. City of New York , 85 A.D.2d 640 ( 1981 )

In a proceeding for leave to serve a late notice of claim upon the City of New York, the infant claimant appeals from so much of an order of the Supreme Court, Queens County (Kassoff, J.), dated October 21, 1980, as denied the application as to him. (The appeal on behalf of the claimant mother has been withdrawn.) Order reversed insofar as appealed from by the infant claimant, on the law, without costs or disbursements, and application granted with respect to the claim of the infant. The City’s opposition to the infant’s application and Special Term’s denial thereof were based solely upon this court’s holding in Cohen v Pearl Riv. Union Free School Dist. (70 AD2d 94), which has since been reversed by the Court of Appeals (51 NY2d 256). Further, having failed to challenge the infant’s application on the merits at Special Term, the city is not now entitled to a remand. Therefore, we not only reverse, but grant the infant’s application as well. Rabin, J. P., Margett, O’Connor and Thompson, JJ., concur.