
    In the Matter of Erma J. Witherspoon, an Infant, by Beatrice Childs, Her Guardian ad Litem, Petitioner, against City of New York, Respondent.
    Supreme Court, Special Term, Kings County,
    December 22, 1948.
    
      Irving Sable for petitioner.
    
      John P. McGrath, Corporation Counsel (Joseph M. Eidelberg of counsel), for respondent.
   Froessel, J.

Application for an order pursuant to section 50-e of the General Municipal Law permitting the infant claimant herein to serve a notice of claim against the City of New York.

On August 8, 1946, claimant was severely injured allegedly through the negligence of the City of New York in its operation of a subway train of the B.M.T. Brighton Line. She was seventeen years of age at the time of the accident, and is now nineteen years of age. She had been living in Brooklyn with a married sister, who is employed and was, therefore, unable to give her the care and attention needed. Claimant, therefore, went home to her mother in Alabama, where she says she was treated by her physician for a long period of, time. She returned to New York in October, 1947, and consulted with her present attorney, who advised her that she should have filed a claim within sixty days after the accident. The claimant’s excuse for not having filed her claim promptly is that she was unaware of the requirements of the statute in this respect and also that she was “ lulled into a sense of security by the assurance of the City investigator that she would hear from the City soon.” She further says that she was suffering such pain that the legal aspects of the case were far from her mind.

The City of New York opposes this application on the ground that the court is without power, after the lapse of one year from the date of the accident, to grant the relief requested. Inasmuch as the infant was seventeen years of age at the time of the accident, she cannot claim the benefits accorded to immature infants.” (See Matter of Hector v. City of New York, 193 Misc. 727, decided herewith.) Moreover, she has not explained the reason for her delay since her return to New York in October, 1947, when she consulted with her attorney. (Matter of Ruskin v. City of New York, 271 App. Div. 934.)

Under the circumstances, the application is denied.

Submit order.  