
    In the Matter of the Claim of William Curry, as Administrator of the Estate of Lula Curry, Deceased, Petitioner, against New York City Transit Authority, Respondent.
    Supreme Court, Special Term, Kings County,
    February 15, 1960.
    
      Herbert Dicker for petitioner.
    
      Daniel T. Scannell for respondent.
   Anthony Di Giovanna, J.

On the court’s own motion the decision heretofore filed is withdrawn and the following decision is made in place thereof:

The accident herein involved occurred on October 22, 1958. Plaintiff claims that as a result thereof death occurred to the injured party about 30 days later. Within a 30-day period thereafter the plaintiff obtained limited letters of administration. A notice of claim for wrongful death and for conscious pain and suffering was verified by the administrator on March 15, 1959 and was served on March 16, 1959, No question is raised concerning the service of the notice of claim insofar as it pertains to the death action. It is claimed by the defendant that the notice of claim for the conscious pain and suffering action was served more than three months after the date of injury. This motion for an order permitting the claimant to serve and file the annexed notice of claim as to the conscious pain and suffering action is now made. There is no doubt that the defendant had full and complete knowledge of the occurrence from the very inception because police blotter reports are on file as well as reports of the defendant’s employees. The decedent had been injured so severely that she died within 30 days after the happening of the accident. Until the administrator was appointed there was no one to file a notice of claim. It is provided in subdivision 5 of section 50-e of the General Municipal Law that the court in its discretion may grant leave to serve a notice of claim within a reasonable time after the expiration of the time specified in subdivision one where ‘1 a person entitled to make a claim dies before the expiration of the time limited for service of the notice.” Subdivision 6 says that a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section not pertaining to the manner or time of service thereof may be corrected, supplied or disregarded, as the case may be, in the discretion of the court provided it shall appear that the other party was not prejudiced thereby. Consequently, in the interests of justice, an order may be entered holding that the service of the notice of claim shall be deemed to have been made within the proper time. Settle order on notice.  