McGrath v. County of Orange , 277 A.D.2d 1003 ( 1950 )

Appeal from an order which granted respondent’s motion for leave to serve a notice of claim, for damages for personal injuries, more than sixty days after the claim arose. Order reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, without costs. There is no showing that respondent’s injuries physically or mentally incapacitated him during the sixty-day period of limitation, so as to prevent him from serving a notice of claim. (Matter of Sullivan v. Town of Babylon, 277 App. Div. 791; Matter of Haas v. Incorporated Vill. of Cedarhurst, 298 N. Y. 757.) It affirmatively appears that forty days after the accident the respondent, pursuant to a request that he had made to the probation officer twenty-six days after the accident, appeared at the Children’s Court of Orange County in reference to a reduction of the weekly payments that he was then required to make for support of his wife and child. Although he had the opportunity to do so (Rules Civ. Prac., rule 64), respondent did not reply to the opposing affidavits which stated that during the sixty-day period after the accident he spoke to others outside of his home and stated that he felt fine and was looking for work, and exhibited no symptoms of either physical or mental incapacity. Nolan, P. J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur.