
    In the Matter of Antonios Biberias, as Father and Natural Guardian of Joanna Biberias, Appellant, v. New York City Transit Authority, Respondent.
    Argued November 9, 1970;
    decided November 19, 1970.
    
      
      Floyd Klapper for appellant.
    
      Abraham Satran, Sidney Brandes and Helen R. Cassidy for respondent.
   Memobandum. The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division pursuant to CPLR 5613 for determination of the questions of fact. (Bogle v. City of New York, 299 N. Y. 620; Cohen and Karger, Powers of the New York Court of Appeals, § 150, p. 595.) The record before us does not compel the conclusion that, as a matter of law, the disability of infancy was not a cause of the failure to file. In respect of applications of this nature, we have consistently affirmed the exercise of discretion upon proper proof; and in cases in which an attorney had been retained prior to the expiration of the period for filing, we have in some instances sustained the granting of permisson and in others have affirmed the denial thereof, as the particular record warranted. (E.g., Matter of Shankman v. New York City Housing Auth., 16 N Y 2d 500, affg. 21 A D 2d 968; Natoli v. Board of Educ. of City of Norwich, 303 N. Y. 646, affg. 277 App. Div. 915; and see Biancoviso v. City of New York, 285 App. Div. 320, 325.)

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, with costs, and matter remitted to the Appellate Division for further proceedings in accordance with the memorandum herein.  