
    In the Matter of John Beary, Appellant, v City of Rye, Respondent. Monica Rodriguez, an Infant, by Her Mother and Natural Guardian, Gladys Rodriguez, Appellant, v City of New York et al., Respondents, et al., Defendants. In the Matter of June Pauletti, on Behalf of Her Infant Daughter, Donna M. Pauletti, Appellant, v Freeport Union Free School District No. 9, Respondent. In the Matter of Mary Smalls, Respondent, v New York City Health and Hospitals Corporation et al., Appellants. Edith M. Merced et al., Appellants, v New York City Health and Hospitals Corporation, Respondent.
    Argued February 14, 1978;
    decided May 4, 1978
    
      POINTS OF COUNSEL
    
      David I. Grauer for appellant in the first above-entitled case.
    I. This court possesses the jurisdiction to hear and determine the issues raised by this appeal. (Matter of Irving Trust Co., 267 NY 102; Hansen v City of New York, 299 NY 136; Matter of Reynolds v Cropsey, 241 NY 389; Stock v Mann, 255 NY 100.) II. The historical antecedents to the recent amendments to the General Municipal Law and accepted statutory construction dictate that the saving provisions of subdivision 5 of section 50-e be deemed retroactive. (Maxmillian v Mayor, Aldermen & Commonalty of City of N. Y., 62 NY 160; Matter of Evans v Berry, 262 NY 61; Bernardine v City of New York, 294 NY 361; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Pugh v Board of Educ., 38 AD2d 619, 30 NY2d 968; Matter of Tricou v Town of Duanesburg, 23 AD2d 949; Matter of Busch v Austin Co., 37 AD2d 648.) III. Matter of Pauletti is distinguishable from the case at hand and this court need not reverse that case in order to reverse the court below in the instant matter. (Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Pauletti v Freeport Union Free School Dist. No. 9, 59 AD2d 556; Matter of Martin v School Bd. of Union Free Dist. No. 28, Longbeach, 301 NY 233; Rippe v City of Rochester, 57 AD2d 723; Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379; Winbush v City of Mount Vernon, 306 NY 327.)
    
      David E. Worby and Lawrence T. D’Aloise, Jr., for respondent in the first above-entitled case.
    I. The 1976 amendments to subdivision 5 of section 50-e of the General Municipal Law are neither remedial nor procedural and were intended to operate prospectively only. (Matter of Mulligan v Murphy, 14 NY2d 223; Benton v Wickwire, 54 NY 226; Shielcrawt v Moffett, 294 NY 180; Jacobus v Colgate, 217 NY 235; Matter of Deutsch v Catherwood, 31 NY2d 487; Gleason v Gleason, 32 AD2d 402, 26 NY2d 28; Hastings v Byllesby & Co., 293 NY 413.) II. Plaintiff-appellant is not entitled to relief under either reading of subdivision 5 of section 50-e of the General Municipal Law. (Rippe v City of Rochester, 57 AD2d 723; Matter of Smalls v New York City Health & Hosps. Corp., 55 AD2d 537; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139.)
    
      Stephen K. Blunda for appellant in the second above-entitled case.
    I. The September 1, 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law is applicable to the case at bar. (Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Murray v City of New York, 30 NY2d 113; Shielcrawt v Moffett, 294 NY 180; Matter of Berkovitz v Arbib & Houlberg, 230 NY 261; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628.) II. Under recently amended subdivision 5 of section 50-e of the General Municipal Law, the application for leave to serve late notices of claim on behalf of Monica Rodriguez is timely. (Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738; Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379; Smith v Rensselaer County, 52 AD2d 384; Kratz v Dussault, 33 AD2d 826; Correa v Board of Educ., 27 AD2d 907.) III. Under the circumstances of this case, the application to allow notices of claim to be served on behalf of Monica Rodriguez should be granted. (Matter of Murray v City of New York, 30 NY2d 113.)
    
      W. Bernard Richland, Corporation Counsel (Irving Cohen and Bernard Burstein of counsel), for respondents in the second above-entitled case.
    The recent amendment to section 50-e of the General Municipal Law is not to be applied retroactively so as to reverse a determination of the court below, which denied an application for leave to file a late notice of claim, where the events upon which the application is based occurred almost six years prior to the filing of the application. (Matter of Moore v City of New York, 302 NY 563; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139; Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Matter of Mulligan v Murphy, 14 NY2d 223; Montez v Metropolitan Transp. Auth., 43 AD2d 224; Berger v City of New York, 260 App Div 402, 285 NY 723; Jacobus v Colgate, 217 NY 235; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Matter of Deutsch v Catherwood, 31 NY2d 487.)
    
      Bruce E. Bushlow and Andrew L. Wurman for appellant in the third above-entitled case.
    I. Section 50-e, as amended, does not require retrospective application in order to afford relief to the injured infant, Donna Marie Pauletti. II. The court below erred in its characterization of section 50-e as a Statute of Limitations. The statute is a mere procedural requirement and therefore may be given retrospective application. (Quintero v Long Is. R. R., 55 Misc 2d 813, 31 AD2d 844; Borgia v City of New York, 12 NY2d 151.) III. Section 50-e of the General Municipal Law is a procedural statute and remedial statute and is therefore to be given retrospective and retroactive effect, particularly as concerns cases currently pending. (Nolan v County of Otsego, 55 AD2d 422; Matter of Smalls v New York City Health & Hosps. Corp., 55 AD2d 537; Rippe v City of Rochester, 57 AD2d 723; Shielcrawt v Moffett, 268 App Div 352; Matter of Himmell v Chase Manhattan Bank, 47 Misc 2d 93; Jacobus v Colgate, 217 NY 235; Kaplan v Kaplan, 31 AD2d 247; Wilner Friends Credit Assn. v Scheffres, 175 Misc 2d 909; Matter of Davis, 149 NY 539; Cohen v Reckseit, 184 Misc 107.) IV. The legislative history of section 50-e of the General Municipal Law clearly shows that the Legislature intended section 50-e to be procedural and intended for the statute to have retrospective effect. (Camarella 
      v East Irondequoit Cent. School Bd., 34 NY2d 139; Matter of Murray v City of New York, 30 NY2d 113.) V. In allowing the claim of Donna Marie Pauletti, the court will not be reviving large numbers of claims or allowing an opportunity for the presentation of fraudulent claims.
    
      Joseph D. Ahearn and George S. Pickwick for respondent in the third above-entitled case.
    The amendment to subdivision 5 of section 50-e of the General Municipal Law, effectuated by chapter 745 of the Laws of 1976 (eff Sept. 1, 1976), is not retroactive, and cannot serve as the predicate for the reviving of petitioner’s claim, which, under Weed v County of Nassau (42 AD2d 848, affd on memorandum at App Div 34 NY2d 723) was time-barred in June, 1974, one year after the accident. There is not the slightest indication that the Legislature intended that the amendment be accorded retroactive effect, let alone that it revive time-barred claims. Under every principle of statutory construction, including particularly the fact that the effective date of the amendment was postponed until September 1, 1976, chapter 745 has prospective application only. (Weed v County of Nassau, 42 AD2d 848, 34 NY2d 723; Fruhling v Amalgamated Housing Corp., 9 NY2d 541; Cox v First Nat. Realty & Constr. Corp., 50 AD2d 535; Metcalf v Central School Dist. No. 1, 280 App Div 875; Williams v City of Oswego, 25 Hun 36; Brennan v City of Albany, 143 App Div 752; Matter of Deutsch v Catherwood, 31 NY2d 487; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Matter of Mulligan v Murphy, 14 NY2d 223; Silverman v State of New York, 48 AD2d 413.)
    
      W. Bernard Richland, Corporation Counsel (Leonard Koerner and L. Kevin Sheridan of counsel), for appellants in the fourth above-entitled case.
    I. The foreign object exception enunciated in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427) is not applicable to this case where the allegations of malpractice are based on medical treatment and petitioner was in continuous pain after the alleged malpractice at the city hospital but, according to petitioner, failed to realize that such pain could be the result of malpractice. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Randall v Weber, 45 AD2d 731; Sosnow v Paul, 43 AD2d 978; McQueen v County of Nassau, 83 Misc 2d 865; Fonda v Paulsen, 79 Misc 2d 936, 46 AD2d 540; Dobbins v Clifford, 39 AD2d 1; Borgia v City of 
      
      New York, 12 NY2d 151; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Waddey v Waddey, 290 NY 251.) II. The 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law should not be applied retroactively to permit petitioner, whose cause of action arose in 1973, to file a late notice of claim. In the absence of a clear indication of legislative intent, changes in procedure are applicable to proceedings thereafter instituted for the redress of wrongs already done. (Matter of Deutsch v Catherwood, 31 NY2d 487; Simonson v International Bank, 14 NY2d 281; Matter of Barton v Lavine, 54 AD2d 350.)
    
      Stanley S. Hausen for respondent in the fourth above-entitled case.
    I. The notice of claim in this case has been timely served within the 90-day statutory period from the accrual of petitioner’s cause of action. (Dobbins v Clifford, 39 AD2d 1; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) II. Even if this case does not fall within the purview of the Dobbins case, the court has discretion here to permit a late filing of the notice of claim. (Borgia v City of New York, 12 NY2d 151; Matter of Murray v City of New York, 30 NY2d 113; Matter of Driskell v City of New York, 31 AD2d 541.) III. "Mentally incapacitated”, as the term is used in the statute (General Municipal Law, § 50-e, subd 5), means the lack of knowledge or awareness of the existence of a cause of action as in the present case. IV. The court below correctly held in this case that the recent amendment of section 50-e of the General Municipal Law, being procedural, may be applied retroactively.
    
      W. Bernard Richland, Corporation Counsel (Leonard Koerner and L. Kevin Sheridan of counsel), for appellant in the fifth above-entitled case.
    The foreign object exception in Flanagan v Mount Eden Gen. Hosp., (24 NY2d 427 [1969]) is not applicable to this case involving allegations that an operation was improperly performed. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Randall v Weber, 45 AD2d 731; Sosnow v Paul, 43 AD2d 978, 36 NY2d 780; McQueen v County of Nassau, 83 Misc 2d 865; Fonda v Paulsen, 79 Misc 2d 936; Dobbins v Clifford, 39 AD2d 1; Borgia v City of New York, 12 NY2d 151; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407.)
    
      Louis W. Kaplan for respondents in the fifth above-entitled case.
    I. This action accrued upon the discovery of the malpractice. (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Dobbins v Clifford, 39 AD2d 1; Murphy v St. Charles Hosp., 35 AD2d 64; Gilbert Props. v Millstein, 40 AD2d 100.) II. Defendant should be equitably estopped from raising the defense of the Statute of Limitations in this action. (Glus v Brooklyn Eastern Term., 359 US 231; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Bender v New York City Health & Hosps. Corp., 38 NY2d 662.)
   OPINION OF THE COURT

Fuchsberg, J.

These five separate cases against public corporations involve tort claims which cannot be pressed without the filing of a timely notice of claim. Common to all of them is the fact that they accrued more than 90 days before the effective date of recent amendments of subdivision 5 of section 50-e of the General Municipal Law (L 1976, ch 745, § 2). The heart of the question before us, crucial to survival of each case, is whether the new legislation may be applied retrospectively.

The Legislature fixed September 1, 1976 as the effective date of the amendment. It retained the pre-existing requirement that filing be effected within 90 days of accrual (§ 50-e, subd 1, par [a]). But it made two significant modifications of the statute: the grounds on which a court may allow late filing were expanded and the time within which an application for such relief can be made was lengthened.

Before the amendment, the primary ground for extension cognizable by a court was disability arising out of infancy or mental or physical incapacity; additionally, a court could permit late filing when a person entitled to assert a claim had either died before the expiration of the 90-day period or had placed justifiable reliance upon settlement representations made in writing by an authorized representative or insurance carrier for the party against whom the claim was to be made. The new standards are far more elastic. In substance, they require a court "to consider” not only the factors to which it was formerly limited, but other newly specified ones along with "all other relevant facts and circumstances”. Moreover, in deciding whether to exercise its discretion, the court’s attention is also to be focused on whether the public corporation or those acting for it acquired actual knowledge of the essential facts of the claim within the 90-day period or a reasonable time thereafter.

The outside time limit for a claimant who seeks to file belatedly was formerly "one year after the happening of the event upon which the claim is based”. Under the revision, the period during which late filing may be permitted is identical with the "time limited for the commencement of an action by the claimant against the public corporation”. Save where the claimant is under a disability (see Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738), this is one year and 90 days (General Municipal Law, § 50-i).

With this before-and-after picture of the statute in mind, we outline the posture in which each of the five cases comes to us:

In Matter of Beary the claimant seeks damages for false arrest and malicious prosecution against the City of Rye. The criminal proceedings on which his claim is premised terminated in his favor when the Grand Jury dismissed all the charges against him. That was on January 14, 1976. His right to sue therefore accrued on that date (see Robbins v Robbins, 133 NY 597; Giglio v Delesparo, 46 AD2d 928). However, his claim was not filed until April 23, 1976, 10 days after the 90-day period had expired. Eight months later, on December 14, 1976, relying on the amendment which had gone into effect on the intervening September 1 and on evidence that the 10-day delay had been without prejudice to the city because its insurance carrier had received timely knowledge of the facts surrounding his claim, Beary moved to file a late notice or to have his original notice of claim declared timely. Special Term granted the alternative relief. The Appellate Division, Second Department, reversed, holding that no part of the amendment was applicable to claims accruing prior to its effective date and that claimant did not meet the preamendment standards (59 AD2d 905).

In Rodriguez the claim is that an infant prematurely born on December 22, 1969 suffered retrolental fibroplasia, a condition affecting her sight, as a result of malpractice in the administration of excessive oxygen in an incubator at a New York City hospital. Though her parents were informed of her condition before the termination of treatment at the hospital on April 20, 1970, they did not file a claim until January 9, 1976. The mother then successfully moved at Special Term for leave to do so. On October 5, 1976, the Appellate Division, Second Department, finding that the claim was untimely, reversed (54 AD2d 692).

Matter of Pauletti involves an 11-year-old child who was injured when she fell down a flight of stairs at a school operated by the Freeport Union Free School District. The accident took place in June, 1973; no claim was made until January, 1976. The infant’s mother than moved for an order directing the school district to accept a notice of claim nunc pro tunc as of a date within 90 days after the injury had occurred and to extend the infant’s time to institute action for a year following the date of the order. Special Term denied both this motion and one to renew made after the effective date of the 1976 amendment to section 50-e. The Appellate Division, Second Department, by a divided court, affirmed the first order (and held the second one academic), essentially for the reasons articulated in Rodriguez (59 AD2d 556).

In Matter of Smalls the claimant seeks to file a claim for medical malpractice alleged to have occurred in a municipal hospital on May 8, 1973 during the performance of a myelogram, a diagnostic procedure to visualize blockage of the spinal canal. The hospital continued to treat the complainant until October 9, 1973. The record supports her allegation that she did not learn that her continuing back and leg symptoms may have been caused by negligent administration of the myelogram until June 25, 1974, when a physician at another hospital brought that possibility to her attention. Her notice of claim was filed on August 29, 1974; on September 6, 1974 she moved for a declaration that it had been timely served. This motion initially was denied by Special Term, but on February 27, 1975 it was granted after reargument on the rationale of the "foreign object exception” to the general rule that a cause of action for medical malpractice accrues at the time the act occurs and not at the time of its discovery (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; cf. CPLR 214-a). On December 14, 1976, the Appellate Division, First Department, acknowledging that the case was not truly one involving a foreign object, but extrapolating from Flanagan and pointing to the fact that section 50-e had been amended while the matter had been sub judice, affirmed "on all the facts and circumstances” (55 AD2d 537, 538).

Merced is another medical malpractice case. This claimant underwent a sterilization operation in a New York City municipal hospital on September 6, 1971. She alleges that on November 20, 1973, when her genital, organs were again exposed during emergency surgery for an ectopic pregnancy, it was found that one of her fallopian tubes, which was to have been occluded in the course of the 1971 surgery, had not been sutured. She served a notice of claim on December 26, 1973 and thereafter commenced suit. Defendant’s answer having pleaded late filing of the notice as an affirmative defense, she moved to strike it pursuant to CPLR 3211 (subd [b]). The motion was denied on March 2, 1976, essentially on the ground that neither the "foreign object” nor the "continuous treatment” theories were available to defer the date of accrual (Borgia v City of New York, 12 NY2d 151) and that the claim therefore had come into existence in 1971. On February 17, 1977, by a divided court, the Appellate Division, First Department, expressly following its decision in Smalls and citing to Flanagan, reversed (56 AD2d 553).

In passing on these cases, our task is to determine whether, in relaxing the strictures of section 50-e in 1976, the Legislature intended that the changes it wrought apply to claims that accrued before September 1 of that year. Of course, had the amendatory language been explicit, we would have had no such burden. For our quest is not for what we might have preferred the Legislature to have done, but for what it in fact did. Since the direct answer is not evident from the statutory language itself, we must seek other guideposts.

The claimants argue that the amendments, designed to correct patent injustices, are "remedial” in nature, and that, since they affect procedures preliminary to suit against public entities, they are "procedural”. Their opponents press countervailing considerations upon us, such as the familiar rule of construction that favors prospectivity of statutes unless the contrary is clearly to be divined (see, e.g., Matter of Mulligan v Murphy, 14 NY2d 223; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 51, 52) and the fact that the statutory change in this case, though signed into law on July 24, 1976, carried an effective date in futuro (see, e.g., Matter of Deutsch v Catherwood, 31 NY2d 487), albeit the future date here was as close as September 1 and was one frequently used by our Legislature as a convenient target time against which to prepare for administering a new law.

However, though such factors are not to be ignored and, in appropriate cases, may even be compelling, they are not ritualistic incantations meriting slavish application (see, e.g., Becker v Huss Co., 43 NY2d 527; Shielcrawt v Moffett, 294 NY 180; People v Cohen, 245 NY 419). Moreover we find it difficult to accept a basic assumption made by the respective litigants — that, in deciding on their retroactivity, the amended portions of the statute are necessarily to be treated as a whole. We know of no hard and fast rule that prevents us from analyzing them separately.

It is relatively easy to retrace the events which impelled the Legislature to expand the guidelines governing Judges before whom application for extensions are made. The amendments followed upon a recommendation made earlier in 1976 by the Judicial Conference (21st Annual Report of NY Judicial Conference, 1976, p 278). Its report relied heavily on our comments in Camarella v East Irondequoit Cent. School Bd. (34 NY2d 139, 142-143). In there urging the Legislature to fashion the reform we thought necessary, we emphasized the "need for legislative consideration of the harsher aspects of section 50-e” and took occasion to help identify the problem by unanimously adopting an earlier sentiment that the statute "should provide a greater discretion to give relief from its requirements” (Matter of Murray v City of New York, 30 NY2d 113, 121 [concurring opn]).

The latter statement was made in the context of a case involving not the time within which, but rather the grounds upon which, an application for late filing could successfully be made. In this area, the conference report, with the prescience of sponsorship, moved away from insistence that an applicant for late filing fall into specified categories; rather it proposed that in "determining whether to grant such permission the court [be] permitted to consider all relevant circumstances” (21st Annual Report of NY Judicial Conference, 1976, p 301). Given this emphasis on loosening the narrow constraints on judicial discretion, it seems clear to us that claimants whose causes of action accrued within the statutorily specified one-year period preceding the effective amendatory date may take advantage of the expanded guidelines.

That conclusion is in tune with the flexibility inherent in the guidelines. Indeed, the very availability of such discretion is a characteristic that distinguishes notice of claim statutes. In their use of the passage of time to bar the initiation of suit and in their reliance on basic principles of accrual to fix the date when such a bar comes into play, they resemble Statutes of Limitations (Borgia v City of New York, 12 NY2d 151, 155-156; supra; see, also, Quintero v Long Is. R. R, 55 Misc 2d 813, 816-819 [Sobel, J.]). However, in leaving the determination of whether extensions of time are to be granted in exceptional cases to a delineated judicial discretion rather than an automatic tolling statute, they differ strikingly from conventional Statutes of Limitations (compare CPLR 208).

It has been said that "The only legitimate purpose served by the notice” is prompt investigation and preservation of evidence of the facts and circumstances out of which claims arise (21st Annual Report of NY Judicial Conference, 1976, p 302; Adkins v City of New York, 43 NY2d 346, 350; Winbush v City of Mount Vernon, 306 NY 327, 333; cf. Salesian Soc. v Village of Ellenville, 41 NY2d 521, 524). The greater flexibility introduced by the amendments appears designed to encourage greater fairness in achieving that goal. Our original notice of claim statutes attempted to serve this purpose by imposing an unbending time bar on late claims (Matter of Martin v School Bd. of Union Free Dist., 301 NY 233, 236-237). Succeeding legislation gradually eased this strictness (L 1945, ch 694; L 1959, ch 814; L 1976, ch 745), but, as the nature of the exceptions listed in section 50-e until its most recent amendment attests, these were not functionally related to the achievement of its primary goal. Instead, they were directed only toward mitigating the hardship imposed on particular categories of claimants. In contrast, the 1976 amendments no longer confine the range of the discretion entrusted to courts to rigid classifications.

Under either the present or the previous section 50-e, the time limit set by the Legislature may be said to have two stages, the first when the 90 days from accrual of a claim has gone by and the second and terminal one when the time within which a court may exercise discretion has expired. In determining that the increase in judicial discretion is fully applicable to claims which on September 1, 1976 had not yet reached the end of the second stage, we consider it significant that the amendment expressly directs that whether the public corporation did or did not have knowledge be accorded great weight. Obviously, this is intended to meet legislative concern for assuring reasonably prompt investigative opportunity under the amendment. For even when a public body has had no formal alert that a claim in fact will be brought, actual knowledge of the facts within 90 days or shortly thereafter makes it unlikely that prejudice will flow from a delay in filing that does not reach beyond the statutory period of a year. Bearing in mind the primary purpose of notice of claim statutes, we believe that the Legislature, in enacting the new guidelines, intended to apply them to claims which accrued within one year prior to the effective date of the amendment.

So it follows that there should be a reversal in Matter of Beary. The claimant there made his motion on December 14, 1976, well within the year after the January 14, 1976 accrual date of his claim; the amended criteria for the exercise of judicial discretion were already in force at this time. Furthermore, Beary made a showing that the 10-day lateness was without prejudice to the city because its liability insurance carrier had earlier learned of the facts and circumstances surrounding the events on which the claim is founded.

We further hold, however, that the amendment does not revive claims that accrued more than one year prior to its effective date. By September 1, 1976, these had passed beyond the power of judicial recall and there is nothing to suggest that the Legislature intended so remarkable a resurrection. Retroactivity of the portion of the amendment which replaces the one-year period with one measured only by the Statute of Limitations that otherwise would be applicable would make it possible for infants to newly file claims which had their genesis in events occurring up to 18 years earlier (see CPLR 208). True, these longer tolling provisions pre-existed the adoption of the amendment, but at that time the possibility that filing of a notice of claim might be permitted within a year after accrual alerted public corporations to the time frame within which there was need to garner information and to perpetuate proof. Now that the period within which late filing of claims accruing after September 1, 1976 may be granted has been elongated, these corporations may be expected to safeguard their interests by gathering and preserving evidence for a correspondingly longer period. But there was in the past no reason arising out of section 50-e for them to have followed such a practice beyond the one-year period during which permission to file late claims on behalf of an infant or person under disability was then obtainable.

The result of treating the amendment as to time as though it were retrospective would therefore be to open the door to an unknown number of claims the defense to which is unprepared and unpreparable. We cannot believe that such a result —exposing public corporations to the revival of ancient claims as distinguished from the mere continuance of ones that have not finally expired — if intended by the Legislature, would not have been clearly expressed. Even "Uncertainties are resolved against consequences so drastic” (Hopkins v Lincoln Trust Co., 233 NY 213, 215 [Cardozo, J.]).

This view is reinforced by the manner in which our statutes have otherwise dealt with enactments modifying time bars. CPLR 218, while extending the benefits of its lengthening of certain Statutes of Limitations to any cause of action not barred at the time of enactment, specifically states that it cannot be read as reviving causes of action already barred when it became effective. A similar provision in fact accompanied the original enactment of section 50-e (L 1945, ch 694, §14).

Consequently both Rodriguez and Matter of Pauletti must be affirmed. Their claims accrued in 1969 and 1973 respectively. Leave not having been sought in either case until 1976, their time to file had by then long expired.

For similar reasons, Matter of Smalls must be reversed. Even on the claimant’s "continuous treatment” theory, the date of accrual would be no later than October 9, 1973, when she was discharged from the hospital. But notice of claim was not filed until more than 90 days later. And none of the limited grounds on which the discretion of courts to grant an extension could then be invoked supported the motion she made in September, 1974 for a declaration that the notice was timely served. Nor do the facts, which describe only negligent treatment, afford the basis for a later accrual date under the Flanagan "foreign object” exception.

Finally, Merced too must be reversed. The "foreign object” on whose absence it is premised was not one present and therefore able to "retain its identity” so that no "possible causal break between the negligence of the doctor or hospital and the patient’s injury” could occur (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 430, supra). True the claimant nevertheless advances the argument, as she did at the Appellate Division, that considerations similar to those which motivated the court in Flanagan should be applied with like effect to the far different circumstances in her case. But the enactment of CPLR 214-a having clearly interdicted the extension of the "foreign object” exception, we must reject that contention. By expressly prohibiting the inclusion of chemical compounds, fixation devices and prosthetic aids from the embrace of the term "foreign object” and by limiting the time within which an action based on the presence of such an object in the body of a patient may be commenced to one year from the date of its discovery, the Legislature left us no room but to conclude that it intended that Flanagan not be broadened beyond its existing confines (L 1975, ch 109, § 6). Accrual therefore was in 1971, when the malpractice is alleged to have occurred, and not in 1973, the year in which the notice of claim was served.

Accordingly, in Matter of Beary v City of Rye the order of the Appellate Division should be reversed and the matter remitted to that court pursuant to CPLR 5613, for the exercise of its discretion (see National Compacter & Technology Systems v Kohleriter & Spandorf, 38 NY2d 933); in Rodriguez v City of New York and in Matter of Pauletti v Freeport Union Free School Dist. the orders of the Appellate Division should be each affirmed; in Matter of Smalls v New York City Health & Hosps. Corp. the order of the Appellate Division should be reversed and the motion denied; and in Merced v New York City Health & Hosps. Corp. the order of the Appellate Division should be reversed and the order of the Supreme Court, New York County, reinstated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

In Matter of Beary v City of Rye: Order reversed and the matter remitted to the Appellate Division, Second Department, for the exercise of its discretion, with costs to abide the event.

In Rodriguez v City of New York: Order affirmed, with costs.

In Matter of Pauletti v Freeport Union Free School Dist. No. 9: Order affirmed, with costs.

In Matter of Smalls v New York City Health & Hosps. Corp.: Order reversed, with costs, and the motion for leave to file late notice of claim denied.

In Merced v New York City Health & Hosps. Corp.: Order reversed, with costs, and the order of Supreme Court, New York County, reinstated. Question certified answered in the negative.

APPENDIX

Before September 1, 1976 subdivision 5 of section 50-e of the General Municipal Law read in pertinent part (L 1959, ch 814):

"5. 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 of this section [i.e., 90 days] in the following cases: (1) Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified; (2) where a person entitled to make a claim dies before the expiration of the time limited for service of the notice; or (3) where the claimant fails to serve a notice of claim within the time limited for service of the notice by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative of the party against which the claim is made or of its insurance carrier.

Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim. * * *”

After being amended (per L 1976, ch 745, § 2) subdivision 5 of section 50-e of the General Municipal Law provides:

"5. Application for leave to serve a late notice.

Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one [i.e., 90 days]. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.” 
      
       The texts of the new and preceding statutes are appended to this opinion.
     